Case summaries

This page includes summaries of completed investigations and will be updated as cases are completed.

1290 – a complaint about the decision not to renew an end of garden mooring upon the sale of a property

A couple purchased a canal side property in 2011. They were attracted by the availability of a mooring and signed an End of Garden Mooring Agreement with the Trust. In 2022 they decided to sell the property and the Estate Agent marketed it with the mooring included in the particulars. Potential buyers contacted the Trust to confirm availability of the mooring. The Trust found that the mooring did not meet the requirements to be classified as an End of Garden Mooring and notified the Estate Agent to remove the mooring from the sales details.

The couple complained that the Trust should have contacted them rather than the Estate Agent, that the reasons given for withdrawing the mooring are unfair and unreasonable and the result is that the property has ben significantly devalued.

The Trust says there are no implied rights to moor on its canals, the Trust is the owner of the canal bed, and its permission is required for the exclusive right to occupy this water space.  All mooring agreements are between the Trust and the customer, not the property, and cannot be transferred from one individual to another.  Any new owner of the property, who also wished to moor a boat at this location, must therefore make a new application to the Trust which will be considered in line with the applicable policy.  However, at this location, it said any application made would not meet the policy requirements as the applicant will not own the land up to the waters edge (i.e. the land against which they intend to moor the boat) as it is the Trust’s property.  

The couple argued the mooring was historic and the Trust had given no indication during the years they lived there that it would not pass to any new owner. They were under the impression that it was associated with the property rather than the individual. 

The Trust provided a copy of the original mooring approval letter from 2011 to demonstrate that they would have known that there was no legal right to moor and that no mooring was included within their Land Registry title for the property.  The from sets out the terms of the mooring approval and point 11 states: “mooring rights are not transferable with the sale of the property and must be re-applied for by each respective new owner” so the Trust believes they were made aware of this by the Trust’s predecessor, British Waterways, when they initially agreed to the mooring terms. 

The Trust confirms that any new application for a mooring at this location would not meet the conditions of its Online Mooring Policy, as the property is on the towpath side of the canal and so not adjacent to the canal. The Trust must apply its rules in the same way across all applications received. As this mooring will not meet the requirements of the policy it would not be able to grant it on receipt of an application from new owners simply because it had done so in the past. This would be unfair to other customers in a similar situation. I was satisfied the Trust acted correctly in notifying the couple that the mooring would not be sanctioned on receipt of an application from a new owner of the property. 

The couple argued the Trust’s decision has affected the value and saleability of the property. While I appreciated that the mooring rights had had an impact on the saleability of the property, they were not a right that had been granted in perpetuity. The land on which the boat is moored belongs to the Trust, it is not and has never been part of the couple’s land and on that basis the Trust cannot be held responsible for any perceived loss in value or saleability. I did agree that out of courtesy the Trust should have contacted them, the agreement holders, rather than the Estate Agent and it should apologise for this.

1236 – a complaint about the ownership of a tree on the boundary of the towpath and a residential property.

Mr K wanted the Trust to complete work on an oak tree which grows in the hedgerow at the junction of his garden, his neighbour’s garden and the towpath. The ownership of the tree was disputed. Historically the Trust had accepted responsibility and with a contribution from Mr K and his neighbour had pruned the tree. However, when Mr K asked it to cut back the tree in 2018 as it was affecting his garden, they asked for a larger contribution which Mr K was not happy with. In 2022 he made a complaint and in its initial response to the complaint the Trust denied ownership and responsibility for the tree. Following a check of measurements and land ownership, it then concluded the tree sits on the boundary line.   

The Trust argued the tree is jointly owned by the parties and each owner would need the permission of the other to carry out any works to the tree and any works should be a shared expense. It also said the tree is structurally sound and did not require any work. Mr K argued the tree did not belong to him or his neighbour but to the Trust and that it was having a detrimental effect on his and his neighbours enjoyment of their gardens and the Trust should bear the full costs of resolving this.

The costs of completing any work would be substantial. There would be preparation work to liaise with the local council and prepare the paperwork to seek consent to do the work as the tree has a preservation order on it and costs of getting the equipment and workmen in to do the cutting. 

Having considered the evidence presented I found that the ownership of the tree, although a key element for consideration was a moot point. This is because even if it was established that the Trust owned the tree it would not agree to carry out the work requested since its policy is to leave trees that are structurally sound. The Trust has based its conclusion that the tree is jointly owned on its own legal advice and the distance of the tree from the towpath. If Mr K and his neighbour wished to challenge this, they would need to seek their own legal advice as it is not in my remit to make a ruling on this. However, I did agree it seemed to be a reasonable conclusion based on the position of the tree, which originally formed part of the hedgerow bordering the garden and towpath and has matured equally into both properties.

Mr K has asked that the tree be felled, to prevent the need for repeated arguments each time the tree needs work. With a Tree Protection Order in place this would be a decision only the council could make and as the tree is healthy would be extremely unlikely. The Trust policy is not to carry out work on any structurally sound tree. The Trust has regularly surveyed the tree and recent inspections found the tree to be living and to have no dead, diseased or dying sections, it does not consider it to be a fire risk and would not, without the request from Mr K consider any work to be necessary. 

For various reasons, mainly related to the previous offers made and failures in dealing with the complaint earlier, the Trust agreed to honour its previous offer to do a ‘little crown lifting’. This would only be with the agreement of the local council and a contribution towards the costs by Mr K and his neighbour of 30%.

Overall, I concluded the Trust had made a reasonable offer to take ownership of the issue and instigate a review of the tree. It is not compelled to do this and is doing so in the interests of being a good neighbour. The offer previously made by the Trust was reinstated and I concluded that was a fair and reasonable one. I did require a small goodwill gesture for some customer service failures. 

1264 – a complaint about how the Trust dealt with concerns about erosion of the canal bank and removal of litter at a residential property.

Mr J’s garden backs onto the canal and he was concerned there was erosion of the canal bank which would have a detrimental effect on his garden. He was also concerned about a reed bed which was trapping litter and causing the canal to be unsightly. He contacted the Trust and was unhappy with the way it dealt with his enquiries and felt his views were not taken into account.

Following the involvement of the Ombudsman the question about erosion was dealt with and the investigation concentrated on the customer service provided. Mr J requested a substantial goodwill gesture to recognise the inconvenience and time spent making the complaint and the frustration he says he experienced.

My role is to see if Mr J suffered any injustice as a result of maladministration by the Trust. I did find instances of poor customer service, inaccurate or unclear information and delays in responding which could be considered to be maladministration. However, I did not consider that Mr J had suffered any injustice as a result, rather he has suffered inconvenience and frustration.

When considering how to remedy the situation the overriding aim is always to try, as far as possible, to put the complainant into the position they were in before the problem started. The question of erosion and litter had been dealt with and any future issues will be handled in line with the general policy that volunteers will do what they can and when the work boat is passing it will seek to collect what it can. Regarding the reeds the Trust has explained they will not be removed, in accordance with its general policy that they help with erosion and the ecology of the canal and water.

I agreed that the time spent dealing with the issue was longer than necessary because of miscommunication and vague messages and an engineer’s missed visit was an error on the part of an individual, who did apologise. Mr J did not provide evidence of any direct or consequential financial loss so to recognise the inconvenience I recommended that the Trust make a moderate goodwill gesture to Mr J. I also recommended that the Trust looks at how it can ensure that the responses it provides to enquiries are clear and consistent and that they have been properly understood by the recipient. Had Mr J been told at the outset that he was responsible for the canal bank and that the Trust was unable to respond to individual requests to remove litter he may not have felt compelled to pursue the matter for so long.

1263- a complaint about the changes to the Trust towpath mowing regime.

Mr G complains that the Trust’s decision to change its mowing regime is having a detrimental impact on him as a boater. Leaving the towpath uncut in areas outside designated visitor moorings and areas of high footfall, which are still used by boaters and others is affecting his enjoyment of the waterways. He says that there are areas of canal side growth of up to 6 foot, which means that mooring up and getting on and off his boat is difficult and at times dangerous. He explains that it is difficult to see the pilings to secure his boat, holes in the towpath cannot be seen, his view of the towpath or his boat are obscured. He says that the result will be that vegetation will get into the canal edge and start to damage the structure, silt will build up resulting in the need for more dredging and overhanging trees will increase as trees embed and grow into the canal bank.

Mr G accepts that it is reasonable not to cut the full length of the canals, but says it is not fair to leave moorings that people use. He also appreciates the need to increase biodiversity but says canals are man-made structures designed for navigation. He says canals have their own character and are not naturally a wild environment and the Trust should take this into account.

The Trust explained it has taken the decision to change the mowing regime, which had been in place since 2007, following a trail which it describes as successful. It maintains the regime has never been to maintain the entire towpath network and in many areas the regime is unchanged. It has provided figures which show that the percentage of the network where a fringe is left is now 57% compared with just 18% in 2018. The Trust sees this as a success in terms of increasing biodiversity with its associated benefits.

Based on the information provided I am satisfied there is sufficient scope in the Trust policy to ensure there are spaces for continuous cruisers to safely moor and the change to the mowing regime should not unfairly disadvantage them. The change to the mowing regime reduces the annual cuts from 5 to 4. Eliminating the August cut should have little effect as the grass often does not grow much then. The Trust will firstly aim to allow for a 1.5 metre width of towpath and ensure the fringe is no wider than 1 metre, something which was not in the old regime. The annual full width cut has been bought forward to begin in September/October and part of this requires that any woody vegetation is cut back and the canal bank is checked for saplings, which are removed and hedges cut back. This should help to protect the canal bank

The Trust has provided details of its new mowing regime, explained the changes made and the reasons for the changes and why it does not agree that a risk assessment is necessary for all locations or in respect of the policy. Mr G does not agree with the responses and sees the actions as impacting on boaters’ enjoyment of and safety on the waterways.  I can confirm that the new regime was implemented following a trial and consultation and there will be a review after a year, this is in line with process. The Trust has provided its reasons why it does not consider that a risk assessment was required, I am satisfied they are in line with process and there is no evidence of any maladministration.

Mr G is adamant that the change in regime is much greater than the Trust says and that strimming to the canal edge was more common than it says. The figures do demonstrate the change is substantial and it maybe that some locations previously did more than others and they may have been areas which Mr G travelled to. As issues with the contractors are resolved, the new specifications are fully adhered to and the requests of local managers are included, I hope that Mr G and other boaters will be able to appreciate the benefits of the increased biodiversity which the Trust is seeking to achieve. To conclude, I did not uphold Mr G’s complaint and I required no action from the Trust.

Case 1246 – a complaint about the refusal to grant an end of garden mooring.

Mr and Mrs F purchased a property believing it had the benefit of an end of garden mooring. They applied for the licence for a boat which they jointly owned with a friend. The Trust refused the licence as it failed to meet the requirements as the applicant was not the landowner and could not provide evidence of their ownership extending to the water’s edge.

Mrs F said the Trust had been inconsistent in its responses and treated them differently from their neighbours in refusing the licence. There were some delays in the Trust reaching their decision and perceived inconsistencies in replies. The restrictions imposed because of National Lockdowns and furloughed staff added to the delays.

The matter was further complicated when one of the boat owners took up residence on the boat to isolate himself because of the pandemic. Mr and Mrs F believed this to be the reason for the licence refusal and argued it was a Local Authority planning matter and not something the Trust should be deciding on. However, it was simply that the application did not meet the criteria of the Trust’s On Line Mooring Policy, which has no right of appeal. I was satisfied the policy is clear, that to grant permission the land adjacent to the canal has to be owed by the applicant. Mrs F used the complaints process to challenge the decision but provided no evidence to substantiate her claim that she had been treated unfairly. I was satisfied that the decision is in line with Trust policy.

Once the application had been refused there was an expectation from the Trust that the boat adhere to the licence conditions of a boat without a home mooring, that is to continually cruise. The boat did not move and therefore the Trust began enforcement action. This process took longer than usual because of the time taken to consider the application, national lockdowns and the ill health of the local support officer

I did not uphold the complaint that Mr and Mr F were treated unfairly. There were some inconsistencies in the reasons provided for the refusal of the mooring and Mrs F was under the mistaken belief that the occupancy of the boat was the problem when it was simply the location. However, as she had benefitted from using the mooring, without having permission to remain in situ, I did not require any further action by the Trust. If Mr and Mrs F and their friend wish to retain their boat without a home mooring they will be required to adhere to the rules of continuous cruising and there will be an expectation that the boat is not moored at the property for any length of time.

Case 1241 – a complaint about the use of the towpath by fishermen and the Trust’s reaction when the issue was raised.

A complaint by Ms C on behalf of her parents whose garden backs onto the canal towpath. They were unhappy that the Trust had granted fishing rights to a fishing club along the stretch of canal, complaining that the fishermen were rude, untidy, disrespectful and upsetting the residents. Ms C said the local residents had always kept the towpath in good condition, mowing the grass and planting to make it attractive for all towpath users. Some residents claimed that part of the towpath actually belonged to them and not the Trust. Following the complaints, the Trust visited the site and decided that it was not appropriate, safe or acceptable for the residents to be cutting the grass etc. The Trust wrote to the residents saying that the Trust would include the area in its mowing regime, that plants must be removed and that it would work with the fishing club to improve behaviour and positioning of fishing pegs.

I concluded that the Trust had demonstrated that it owns the land, it has followed its policy to promote and provide one of its core activities, angling and it has taken a decision, based on a health and safety risk assessment that the residents should not be undertaking any work on the path. The Trust explained this is because there are so many inherent risks to undertaking an activity so close to the water’s edge and in an open public environment where other activities may be taking place with members of the general public in close proximity. The Trust could not knowingly permit the situation to continue on its land and not requesting the residents to desist from cutting the grass would imply the Trust consent or authority had been granted when it had not. I considered this to be a very reasonable argument and I did not uphold the complaint.

Case 1232 – a complaint about the overstaying boats and their burning of waste construction wood creating toxic smoke.  

Mr D complained about the problems caused by overstaying boats, burning waste construction wood which creates highly toxic smoke. Mr D said the smoke regularly filled his home and many others in the neighbourhood. Mr D believed the ongoing burning practices in very close proximity to people’s homes constitute an emission of smoke prejudicial to health under the Environmental Protection Act 1990. He argued it was within the Trust’s power to substantially mitigate this threat, while accepting they lack formal statutory powers regarding smoke nuisance. Mr D said the Trust could, for example, prohibit certain burning practices as part of their licence conditions, and update their signage to reflect this. Mr D claimed the Trust’s failure to take further measures is negligent and was creating a significant health risk to local residents, especially the many small children who live in the area.  He wanted overstaying boats moved on, some of the moorings moved and the Trust to ensure it educates users on the dangers of toxic smoke.

The Trust explained that it has no legal enforcement powers in relation to smoke nuisance, they lay with the Local Authority (LA). It says it is committed to working with the LA and boaters to highlight the dangers of burning fuels which produce smoke and toxic fumes for the boater and residents alike. The upcoming introduction of smoke control areas by LAs will see more emphasis placed on this issue and make enforcement easier for the LAs. The Trust did not agree to a change to its licence conditions to include the banning of burning the wrong fuel type.

I concluded its argument that it has no power to enforce it is a valid one and, in many cases, it could be viewed as a disproportionately strong response for a boater seeking to heat their home in the cheapest way possible. The Trust says it is committed to increasing its educational programme about the dangers of the practise and working with LAs to improve signage in locations designated smoke control areas.

I recommended that the Trust uses the information gathered by its boat sightings to review how the mooring in this area is used to allow consideration to be given to the possibility of moving or removing the moorings closest to the apartment blocks. I also recommended that the Trust strengthens its message to boaters that the use of fuels which cause excessive and potentially toxic smoke is harmful to themselves and others and the Trust can use the general nuisance condition of the licence to take action. Finally, I recommended that the Trust should continue with its commitment to increase its educational programme about the dangers of burning the wrong type of fuels and working with LAs when new smoke control areas are created to improve awareness and signage in those locations. I suggested inclusion in one of its Boaters’ updates and in any direct communication with a boater where this issue has been specifically complained about.  

Case 1243- a complaint from residents of a canal side property that the canal wall was leaking into their underground garage.

Mrs E raised the complaint on behalf of the residents of an Apartment block. She explained that the residents had first approached the Trust in 2016/17 to alert it to the seepage. The residents believed the Trust was responsible for the damage this was causing because it was not maintaining the canal wall sufficiently. Mrs E complained that there was maladministration by the Trust in the way it had dealt with their complaint. The Trust had accepted the delays in responding have been well below the expected standard and in 2020 advised the residents to contact the loss adjustors if they wished to pursue a claim for damages.

The investigation concentrated on how the matter had been handled as the residents believed the way this case was handled by the Trust had made the actual issue considerably worse and far more stressful than it needed to be.

I concluded that the Trust was correct to refer the residents to its Loss Adjustors with allegation that it was responsible for the water ingress at the property and that the Trust had not dealt with the correspondence and contacts in a timely and efficient way. This had extended the time to provide the residents with a definitive response that it is not responsible for the water ingress and will not be taking any action to stop it. The Trust maintained that it did provide the residents with such advice, but the continued contacts from the residents should have alerted it to the failures in its messaging. To recognise the stress and inconvenience caused to the residents in having to make repeated requests for information and contact over a period of years I recommended a goodwill gesture to recognise the time and trouble involved.

This page includes summaries of completed investigations and will be updated as cases are completed.

Case 1227 - a complaint from a boater in central London about the Trust’s support for and licencing of the company which provides leisure hire boats.

Mr B complains that the users of the small hire boats are reckless and have caused damage to his boat and are a danger to themselves and others. He is unhappy that the Trust should provide a business licence to the company, which he says does not do enough to protect his boat from collisions. The Trust says it has done a lot of work to improve standards and had assurances from the business that it is taking actions to ensure safety for all. Some of the issues raised were outside the remit of the Ombudsman, an insurance claim and provision of a fender. Mr B was advised to continue to work with the business to resolve these issues.

I concluded that the Trust had followed process in approving the Business Boat licence to the company and had demonstrated that the business meets all the licence conditions and is proactive in dealing with complaints. I was satisfied from the information provided to me that the Trust has acted responsibly and in line with its usual processes and procedures in issuing the licence and in dealing with complaints raised by customers.

I recommended the Trust revisit the signage provided along the canal bank and consider if there is any signage it could provide that would help to alert users to possible hazards and avoiding collisions. And that the Trust request that in line with 11.3 of its licence conditions that the business ensure that all potential skippers of the boats are trained and can demonstrate competence. Users should then be advised that only people who have completed the training and have demonstrated competence can skipper the hire boats. If others are steering when there is a collision, the nominated skipper may be liable for damages.

Case 1228 -  a complaint from a canal side resident about a newly installed automatic barrier for a swing bridge across the canal.

Mrs C lives next to a small swing bridge over the canal. The Trust undertook works to improve the safety of the bridge by installing automatic barriers and wig wag lights. Mrs C complains the new equipment is unsightly, the barriers are dangerous, and she has lost access to her garden. The Trust says it has worked hard with all parties to reach a resolution and that some of the elements of the complaint are outside its remit.

I was satisfied with the Trust’s explanation for the position of two steel cabinets, that it had the right to install a locked gate which prohibits general public access to the canal side of Mrs C’s home and that the installation of the wig-wag on Highway’s land has been explained and retrospective permission has been provided.

I made a number of recommendations that the customer and the Trust work together to resolve outstanding issues regarding the visual impact of the installation I recommended that in future project work, where householders are in such close proximity to the site, the Trust consider advising of planned work beforehand, much as they would have to do if they required planning permission. This would help to alert the Trust to any local issues, peculiarities to the location and allow the residents a route into the Trust to raise their concerns to avoid any confrontations between residents and the workman, who may not be empowered to make changes or comment.   

Case 1231 – a complaint about overstaying boats causing a nuisance to residents living alongside a stretch of the Grand Union canal, particularly regarding smoke.

Mr D would like the Trust to change its mooring policy on this stretch from 14 days to 48 hours as he believes that would alleviate the situation as continuous cruisers will be obliged to move on. He argues the offending boats would, or should, if patrolled properly move on in a much smaller time frame and this anti-social practice would be reduced. He also complained that wide beam boats are now collecting on this stretch and when mooring adjacent to his boat are causing a restriction in width whereby his boat is being hit.

I was satisfied that the Trust was taking action to remedy the situation, with the provision of signage and recruitment of a Boat Support Licence Officer. It is also committed to working with Mr D and the local enforcement officer at the council to monitor the smoke problem and take action as required. As the Trust has no enforcement powers it is restricted in its actions regarding smoke pollution, although anti-social behaviour can be addressed via the boat licence conditions and I said I would expect the Trust to act on any complaints it receives in that regard. 

The Trust demonstrated it had followed its procedure for considering the change of mooring request but had declined to make the change, explaining it is not in line with its policy to limit such areas to 48-hour mooring. I was not persuaded there has been any maladministration in the making of this decision. The Trust was satisfied there is sufficient width at this point in the canal to allow the safe passage of boats and if Mr D had any evidence of his boat being hit he should report that to the Trust and if there is damage he should make a claim against the boater via his insurance. I concluded the Trust had taken the complaint seriously and completed a thorough investigation. It has initiated some actions which will hopefully help and has considered but declined the request to reduce the mooring time limit.  I am satisfied it has provided a robust explanation for its decision. I made no recommendations.

Case no. 1186 - A complaint about the Trust’s response to a request for payment to cover the cost of increased home insurance premiums because of flooding of a home.

Mr A explained that his home was flooded, he holds the Trust responsible for that. He accepted there had been a huge amount of rainfall on the day in question but believes the delay in opening the lock gate paddles near his home allowed the canal to overtop which resulted in the flood. He said the final response he received showed the Trust had a lot of data available regarding the level of rain fall and the height of the canal water. He felt that had they used this data to inform the decision to open the lock gate paddles sooner, the whole thing would have been avoided. 

As a resolution to the complaint, Mr A would like the Trust to make an award of £3,500. He explained this represented the increase in his home insurance premiums, which are now around £350 a year more than they were previously. He said as his previous insurer asked if the home has been flooded in the last 10 years, he calculated he would be £3,500 out of pocket over the next 10 years.  

The Trust said it had taken actions on the night to manage the impacts of the heavy rainfall with all the resources it had available. It said these decisions were based upon the meteorological information it was aware of and data from its own monitoring systems. It said opening the paddles in question would have meant another action was not carried out and so it is not as simple to say that the impact in one location would have been avoided by taking a different course of action, as the knock on effect of not delivering the other action could have made the problem worse. It says it aimed to take the overall best course of actions, and it is comfortable it did that. The Trust said the modelling required to reach a definitive conclusion on alternative courses of actions would be extensive and it simply does not have the resources required to do this.

Having considered all the information I was satisfied that, on the balance of probabilities, the Trust could not be shown to be responsible for the flooding which occurred in the area that night. It acted on the information available to it from its data collection and other agencies on the night and has demonstrated that it had acted in the preceding days to manage the water levels in the canal in anticipation of the storm. I accepted Mr A’s insurance premiums had increased, but I had not been persuaded there was a direct correlation between this and the opening of the lock gates that night. The information from a Government website indicated his home is in a high-risk area for floods from surface water, which are not necessarily linked to the canal.

I did identify areas of the Trust’s complaint handling which could have been better and could be improved. There were questions asked by Mr A which were not answered until this investigation asked. Had they been answered sooner they may have negated this investigation. For that I recommended the Trust apologise and make a goodwill award to recognise the inconvenience caused to Mr A in making this complaint.

Case number - 1202 A complaint about the requirements to continually cruise for a boat without a home mooring licence.

Mr T was aggrieved he had been sent a letter advising that because of concerns about his cruising pattern but for the National lockdowns, which meant that 12 month licences were being granted, he would have only been offered a 6 month licence on renewal. In normal circumstances he would then have had the 6 months to demonstrate compliance with the continuous cruising requirements. Mr T argued that he had always acted in line with the Trust’s published guidelines, Boater’s Handbook and Terms and Conditions and had completed many miles of navigation in the year. The Trust accepted he had completed an initial long journey but that its recorded sightings indicated that after that he had predominately stayed in the same locality. They said he appeared to be shuttling back and forth on a small stretch of the same waterway, rather than being engaged in genuine navigation throughout the network. Mr T said he had moved between neighbourhoods in line with guidance, not stayed longer than 14 nights in a single spot and that trips made were missing from the Trust’s sightings.

The Trust maintained that, even with the additional trips included, the cruising pattern did not demonstrate he was engaged in genuine navigation throughout the period of the licence and was not making a progressive journey throughout the network.

There were delays in the Trust’s complaints responses, which I recommended it should apologise for, and some initial information provided which may have mis-led Mr T about the requirements. I agreed with Mr T that a general letter issued about cruising patterns should not be considered an individual warning letter.

I concluded that the Trust had acted in line with its policies and procedures and with the guidance it provides. The Trust has now removed some of the wording on its website FAQs referring to 20 miles or more of cruising being expected in case this was causing some confusion.

Case Number - 1210 A complaint from a boater about an unexplained change to his mooring agreement.

Mr X purchased a 50-foot mooring in 2014 on a three year term. He renewed it annually for the next three years and presumed it was on the same basis. However, in 2017, because of the way the Trust’s accounting system was set up, the size of the mooring was reduced to the size of the boat, 32-foot. Mr X was unaware this had happened, although the price reduced significantly, he was not given anything to advise him this was because of the size reduction.

In mid-2020, when Mr X struggled to get back into his mooring, because of boats moored either side, he was advised that he was only paying for a 32-foot mooring. He complained that the Trust had not complied with its requirements to advise him of a change to his mooring agreement and so he should not have to bear the increased costs incurred when bidding on a new 50-foot mooring.

The Trust explained it was standard practise at the time, June 2017, to revert from an agreement based on the length of the mooring to one based on the length of the craft. Although they do now continue to offer the original length of the mooring space in subsequent renewals.

The terms and conditions in place during the initial mooring agreement 2014-2017, did not include a requirement for the Trust to provide 6 weeks notice of a change. When Mr X signed a new agreement in 2017, he agreed to the new terms and conditions which did include the requirement to provide 6 weeks notice of a change to the mooring agreement. I agree it could be argued that the Trust should have given 6 weeks notice that both the length of his mooring and the price he was paying would be reduced at renewal. However, as he accepted the terms of the renewal by paying the lower mooring rate and remaining on the mooring for over 4 years after the renewal in 2017, he effectively waived any right to a contractual remedy arising from the Trust not giving him the 6 weeks' notice. In technical contractual law terms, he would be 'estopped' from relying on this in terms of bringing an action for breach of contract and seeking any damages (in the form of the reimbursement of mooring rates since 2017 or compensation). I also noted that at his subsequent renewal in 2020, the terms did not change and so the Trust would not have been required to give him 6 weeks notice at this point, so any breach is purely historic relating to a former mooring agreement period.

I concluded that, for a variety of reasons, Mr X had not known about the change and there had been a lack of transparency in the Trust’s actions. Mr X was unaware and unaffected by this for three years, having full use of the larger mooring at a reduced rate, that is he was occupying a 50 foot berth but paying for a 32 foot one. When he became aware he asked the Mooring manager to immediately accommodate him with the same or a new mooring of the size he required. Although this was not immediately possible Mr X was offered but rejected a cheaper berth that would soon be available. Mr X says he felt compelled to bid on a new berth, which was considerably more expensive than the one he had, and he wished the Trust to cover these costs.

I concluded it would not be fair and reasonable to make an award that covered all his increased costs. It was his decision to bid the price he did at auction and to pay the higher cost with nothing from the Trust to confirm it would pay his costs. I did recommend a goodwill gesture to recognise the issues faced and inconvenience caused. 

  Case Number 1193 -A complaint about the handling of payment plans for licences without a Direct Debit.

Mr Q and Mrs R complained about problems faced over several years which stemmed from an early payment of their licence fee being placed on the previous years’ account. The Trust responded to the points raised but the couple remained unhappy with several elements including, the action of one individual, the incorrect recording of their address, the use of county court summons, the length of time taken to resolve maters and what they alleged was a cover up and avoidance of answers.

The couple requested recompense to recognise the years of ongoing stress, worry and ongoing anxiety and their constant frustration of being refused telephone contact with the local office. The complaint started with an early payment in June 2016 and the final response was issued in August 2020.

The Trust has several ways customers can pay for boat licences, but Mr Q did not want to use them and so a special arrangement was made for him to pay £100 each month.  Unfortunately, there was a difference of opinion on the start date of the arrangement in 2016 and opportunities to identify the cause of this and put things right were missed. With the benefit of hindsight, it is easy to look back and spot the point where things went wrong, but at the time it appeared to the Trust the account was in arrears, and it followed process to recover the arrears.

There were also opportunities for Mr Q to spot the error and seek to remedy the matter. He was sent a copy of the payment plan which set out the due dates for payment which were explained again in a telephone call. Mr Q has tried to resolve things, he met with the local boat support officer to discuss the issues, but it does not appear that information was passed back to the credit control team to alert them to the issue. To compound the problem there were discrepancies with the customers address which were not properly explained and an issue when he received correspondence for another boat. There were also payment issues the following year despite a Direct Debit being set up.

The matter has been unresolved for some years and there have been some delays in the Trust meeting its deadline for responses. There also appears to have been times when there has been no activity at all. The Trust says it has taken the learnings from this complaint and looked to make improvements in its procedures to prevent any recurrences. Mr Q is seeking accountability at the Trust for actions taken, this is an internal matter for the Trust and would form part of the process improvement work it has agreed to undertake.

I have not been provided with any evidence from the couple to make an award for direct or consequential losses so I considered an award for distress and inconvenience only. I do have sympathy for the frustrations experienced by the couple, but I have nothing to support an award of the size requested. I have seen opportunities when both sides could have taken the time to understand what had happened and prevent the matter snowballing. I have seen no evidence that this was any kind of vendetta by Trust staff against the couple and while I appreciate, they describe being embarrassed while using the canal network, as they were not able to display a licence, I did not consider that merited an award of the amount requested.

Following my investigation, I concluded there were opportunities when both sides could have worked better together to understand the root cause of the problem and prevent the matter escalating. The Trust says that it has learnt lessons and a review of the way they work is to be conducted, which is welcomed.

I recommended the Trust make a medium sized award to Mr Q and to Mrs R as a goodwill gesture and that it reviews how its payment plans are processed to ensure that customers have confirmed their agreement to the plan recorded against their records. 

Case no 1171  A complaint about who is responsible for dredging a mooring at a Cruising Club.

The Cruising Club has been complaining since April 2018 about the lack of water depth on its moorings. It said that British Waterways Board (BWB) previously dredged the mooring, but they had not been dredged for over 22 years. The lease agreement did not include any details as to which party was responsible for dredging and there was nothing to compel the Trust to finance the cost of the work. I concluded as there is no recorded liability for the dredging the onus will fall to the party which requires the dredging to finance it. 

The Trust argued that the Club should have told the Trust about the need for dredging when it consulted widely on the Dredging Programme in 2018. The Club believed the Trust was aware of the issue before the 2018 consultation and should have included the area in the programme. I concluded that even if the area had been included in the consultation there is nothing to guarantee it would have dredged, resources are limited, and the Trust would have had to consider where dredging was most needed at that time. 

The Club do not believe the Trust is treating it fairly. They are negotiating a new lease with the Trust, which is a separate issue, which gives it the right to moor boats on the offside but if the silt is not cleared it will be paying for a facility which is becoming difficult to use and is a significant part of its income. The general rule for the Trust is that where there is a commercial agreement in place, they do not dredge under moorings, unless they have already agreed to do so within the contract covering them, which they have not in this case.

The Club consider that refusal to dredge the area and implying they have no responsibility is an act of deliberate neglect by the Trust which could affect the viability of the Club in the future. The Club says it has worked hard over the last 50 years to restore the site and boating facility and is being treated unfairly and with disrespect. The Trust acknowledge the contribution the Club has made to the area, and therefore it has tried to explore opportunities to assist it. The Trust has to be mindful there are many Cruising and similar Clubs within its network, and each should be treated in the same way, if the lease does not stipulate who is responsible for the dredging it does not fall that the Trust should be the party to bear the cost.

As a resolution the Club says it would like the Trust to take responsibility for dredging the area, as BWB always did, to enable the Club to operate. They say they expect the Trust to honour its part of the lease and ensure the mooring are fit for purpose. The lease puts no such requirement on the Trust and so I could not require that it fund the cost of the dredging.  

I did make some recommendations that the Trust should explore the potential cost of completing the dredging work required at the moorings by getting quotes from two certified contractors as it had already planned to do. When the information is available, they should inform the Club so it can make an informed decision of how it wishes to proceed. This should happen within two months of acceptance of the final decision and before the lease negotiations begin. 

The Trust had already suggested it should support the Club in the best way it can by waiving any costs in relation to its own work in providing technical assistance in the developing of the project and waiving its standard fees for third party work carried out on its land. I recommended this happen and that the Trust should apologise for the delays in dealing with this issue particularly during the early stages when documents were lost, and contacts were not followed up.  

Case no 1173 A complaint about flooding at allotments.

Mr S has an allotment at a location which is leased from the Trust. In February 2021, the allotments flooded, and Mr S contacted the Trust to request some action to inspect the allotments and propose actions to remedy the situation. He complains the allotments remained unusable and the Trust did nothing to assist him. As a resolution to the complaint Mr S wants the flooding problems at the allotments to be resolved so they can be fully used, an explanation of the poor customer service he has experienced and an apology for the delays in dealing with this issue. 

The Trust has explained to Mr S that, although he is a user of the allotments, he is not the leaseholder. A copy of the lease was provided which expressly states the leaseholder is “to take the land in its current state on the understanding the Trust will not be liable for its condition or any work thereto”. The Trust has explained that before entering the lease arrangement with the Trust, the leaseholder noted in writing, that the site floods and had discussed this with the Trust, noting the role of the Environment Agency in managing flood risk.  The Trust has taken the view that the leaseholder was aware of the risk of flooding to the site and that no specific obligation on the Trust to maintain the site should be expected by them, and therefore nor by any of the users of the allotments.

 The allotments are in an area prone to flooding, all parties are aware of this. The Trust has limited resources and when areas flood it must decide where best to use that resource to avoid any risk to life, to protect properties and livelihoods. I consider it inevitable that allotments would not be high on the priority list. The Trust does not consider there is a need to carry out any work at the allotment and that flooding is to be expected, because of the location. The Trust has provided the leaseholder of the allotments with a refund of the rent for the year affected as a gesture of goodwill, even though the Trust is not contractually obliged to do so. The Trust has apologised for its poor customer service, which is somewhat explained by the frequency of contact and unachievable expectations of Mr S and has apologised for this. It has reported that individual failures which were highlighted have been dealt with internally.

 I upheld Mr S’s complaint that his contacts were not handled as well as should be expected and recommend the Trust apologises for that. I did not uphold the complaint that the Trust failed to take any action to remedy the flooding at the allotments to make them useable. The flooding is a natural occurrence, because of the location in low lying flood area, the Trust is not responsible for this.

-case no 1169 -complaint about the selection of candidates to a training course to become a Boat Safety Examiner.

Mr P complains that, in its capacity as a training provider the BSS Office is anti-competitive, manipulating the marketplace of Boat Safety Examiners by only allowing people to qualify if they live in a certain area and that the cost of the Examiners training course is excessive, and the high cost is being used to discourage applicants, and the cost of ‘Professional’ as per the published accounts is disproportionate to the operation and you request clarification.

Mr P considers the inclusion of geographic location into the selection criteria of the course to be unfair for all applicants. He argues that as the BSS is totally dominant in this marketplace, it is disadvantaging applicants by applying a criteria that is unnecessary for a place on a training course. Mr P says he understood he had been accepted for a place on the course in 2015 and began to prepare for that role. In 2020 he was told that he would not be accepted on the next available course because where he lived was not a priority area for examiners.

Mr P argues, since he had previously been accepted on training courses, he should not have had to go through a selection process. The BSS has explained that from 2016 onwards the course was being redesigned. When the new format had been agreed it was fundamentally different in structure, content and cost and places were limited. Therefore, due to a high demand for limited places candidates were invited to complete a two-stage application refreshing the information they had previously provided. I was satisfied that, when a course was eventually available it was fair and reasonable to all candidates that they were all asked to re-apply. I do not accept Mr P’s argument that he had already been accepted and so should be exempt from this process.  Mr P says he has no objection to reapplying but does not consider the method employed was fair.

The Trust explained that due to the withdrawals of existing examiners, the geographic criteria was important to ensure that the customers of the various navigation authorities can have an examiner within a reasonable distance of their boats. The BSS serves 14 Navigation Authorities across England and Wales and I agreed it made sense to ensure that those authorities have sufficient examiners for their needs. As the likelihood is that an applicant from a particular area will, once qualified, wish to remain and work in that area it seems to be a pragmatic decision to consider location when assigning the places on the course. I do not criticise the BSS for including the criteria as part of its selection process for the course. It was not the definitive criteria, rather it was one of several criteria to be taken into account.

I was provided with a detailed but confidential breakdown of how the process of selection was conducted by the external contractor. It demonstrated a fair and robust process was used which weighted applicants against a competency and then looked at CVs. Candidates were graded with an A if they had the qualifications and appropriate length and type of experience. Only following the grading process was the issue of location applied. On this basis I am satisfied that the reason Mr P’s application did not make the top 50 list was not because of his location but because of his experience and skills. Therefore, the decision to include location as a criteria for course selection did not disadvantage Mr P. I do not find that the BSS has a geographical bar and I do not uphold his complaint.

Mr P’s second complaint is that the cost of the Examiners training course is excessive, and the high cost is being used to discourage applicants, and the cost of ‘Professional’ as per the published accounts is disproportionate to the operation and he requests clarification.

Mr P compared the cost of the course with other vocational courses.  In its response to me the Trust has looked at the costs of other courses which when fully tallied up for a complete qualification are similar costs. The Trust has also provided a breakdown of how the costs of this course are made up which show it is carefully costed. General information explaining what the course involves is also available on the BSS website and shows the course includes two one-week courses as well as other day long events, online learning and ongoing support. I do not find any evidence that the cost of the course is excessive or there is a deliberate policy to restrict applicants by pricing it too high.

Mr P also queried a figure in the BSS accounts, published results for 2018/19. The Trust told me the accounts published on the BSS website are audited accounts. The level of detailed breakdown published externally is in line with what is prescribed by the Trust.  This is commercially sensitive information and consequentially no further breakdown is available to Mr P, even under the Freedom of Information Act. 

The Trust has already apologised for the delays Mr P has experienced from his first request to register for a place on the BSS examiner course. It has taken a considerable time and I can appreciate this has been very frustrating for him.  Although there have been occasional updates and requests to re-register the actual courses have not run.

The BSS has taken some time to ensure that the new course will meets all its requirements and needs. While I acknowledged the waiting time has been a frustrating period for Mr P I found no evidence to substantiate his allegations that he has been treated unfairly or there has been any maladministration in the course selection process which has disadvantaged him. There were simply better qualified candidates for the role. In relation to the cost of the course and other financial question I found no evidence of irregularity and did not uphold Mr P’s complaints.

 Case no - 1153 complaint about the Trust’s Equality Policy and the means of assessing a reasonable adjustment.

Mr Q has a continuous cruising licence and complains the Trust, though aware of his disability, insisted that he move his boat. He thinks is not fair and reasonable and goes against the Trust’s Equality Policy and possibly the Equality Act. He complains about the Trust’s use of an Equality Questionnaire to gather information on ongoing medical conditions and disabilities. He says the Trust does not understand it has a responsibility to provide proper disabled facilities, including providing proper disabled ramps and pontoons. He believes it is against the Equality Act and its own policy to try and make him move without providing the proper facilities which he can use. He explains he needs good access not only to the boat but to his car.

In 2017, Mr Q developed health problems which have left him registered disabled and using crutches. It became increasingly difficult to adhere to the Continuous Cruising policy and so he applied for a reasonable adjustment to allow him some leeway. Since then, Mr Q has raised several issues with the Trust about its Equality policy, the way it operates the policy and the facilities it has available to its disabled users. This complaint arose following a culmination of issues and his belief that the Trust had not accurately assessed his needs when deciding on a level of reasonable adjustment. 

Boaters without a Home Mooring are required to be engaged in genuine navigation throughout the period of the licence, that is, moving from place to place over a total range of 20 miles or more. The boat must not stay moored in the same neighbourhood or locality for more than 14 days and it is the boater’s responsibility to satisfy the Trust they are meeting these requirements. Requests to differ from these rules because of disability are covered in the Trust’s Equality Policy for Customer Service Delivery. The section headed, Adjustments to our Guidance for Boats without a Home Mooring says the Trust may carry out an assessment of the disability and the impacts on compliance with its guidance and may involve a face-to-face interview. It sets out the factors which may be relevant and examples of the reasonable adjustments it may offer.

The assessment begins with the completion by the boater of an Equality Questionnaire. This gathers information about how the physical and mental health of the respondent affects their abilities to use their boat. Once completed the information is reviewed centrally and in the strictest confidence by an independent internal group, which the Trust says may include welfare, boating and legal colleagues.

There is no dispute that Mr Q is disabled and requires a reasonable adjustment to his cruising pattern. He says the adjustment made demonstrates the people on the panel do not understand his circumstances or chose to ignore them, nobody from the panel had a discussion with him before deciding the adjustment and that it does not take account of the fact there are no suitable facilities for him, as he is on crutches, he cannot move during the winter months. He believes the equality questionnaire is not a proper way to assess his circumstances and has had an unfair impact on him.  

The Trust notified Mr Q of what it considered a suitable reasonable adjustment. It was to remain at one location for periods of 28 days and at another for periods of 7 days and 16 kilometres distance of travel. Mr Q argues he did not accept this and that he made it clear that he is unable to adhere to the modified rules. The Trust says there was implicit agreement in his responses to the Trust and in telephone calls and emails. Having reviewed the evidence, I was satisfied it was reasonable for the Trust to believe Mr Q had accepted the reasonable adjustments from July 2019 onwards.

Mr Q did not feel able to comply with these requirements. He moved once in the two year period, to empty his water tank, after making specific arrangements with the Trust to reserve a mooring for his return. The journey was difficult and did not go to plan. Mr Q’s argument is that, by not providing the facilities he needs at other locations he has effectively been trapped and unable to move. He says the Trust should be able to accommodate the needs of all boaters, including those who, like him, are unable to cruise. 

The Trust advised it cannot agree to a reasonable adjustment which allows for no movement since that would contravene the British Waterways Act 1995 section 17. It has an obligation to manage the waterway, ecological and hydrological reasons as well as considering if there would be a need for residential planning permission. The Trust has provided evidence of emails and notes of conversations with Mr Q that demonstrate it has tried to accommodate his needs taking account of his disabilities.

When the Trust noted Mr Q’s boat had not moved in line with the adjustment, they contacted him to ask why and if they could assist. Mr Q says he did not refuse to comply with the adjustment he was unable to.

Overall, I did not uphold Mr Q’s complaint that he has been disadvantaged by the Trust’s Equality policy and processes. I was satisfied the Trust had tried to work with Mr Q by offering support to move or allowing him to remain in situ when he explained his circumstances. The people who contacted him were all working within their guidelines and adhering to policy and procedures. There was no evidence of bullying or harassment as Mr Q alleged. 

 Mr Q complained about the Equality Questionnaire. I was satisfied the questionnaire is a useful starting point and, when completed and combined with a discussion with the boater, if appropriate and considered necessary, should be sufficient to decide if a reasonable adjustment can be made. Mr Q believes the Trust have been negligent when dealing with his requests for a reasonable adjustment which is fair. The process is a two way agreement where both sides may have to compromise to reach an agreement on what is acceptable. It requires two way communication and the positive engagement of both parties to work well. Although Mr Q claims he has been disadvantaged by the reasonable adjustment set by the Trust, the reality is he did not comply with his side of the arrangement. He did not keep the relevant people at the Trust updated and he did not move his boat as set out in the reasonable adjustment. The fact that the Trust has not taken any enforcement action and has allowed Mr Q to remain in his desired location demonstrated it does work with the boater to help them remain on the water, rather than, as Mr Q alleges, it discriminates against them.

 Mr Q raised issues related to the provision of facilities specifically for disabled boaters. These are policy decisions and so not within my remit. 

Mr Q is seeking through the Ombudsman process to demonstrate that the Trust discriminates against disabled boaters because it has not provided sufficient facilities to allow him to continuously cruise the waterways. I have considered the specifics of Mr Q’s circumstances and have found no evidence of this.

As to whether the Trust has shown a lack of understanding of disability issues, I have to say that there is no evidence from Mr Q’s case that this is so. I do accept that he has genuine difficulties in managing his disability, and that he may be unable to do things which other people would take for granted. The Trust does have certain obligations in respect of people with disabilities, but those obligations are not limitless and it does not seem to me that the Trust has failed to do anything it could reasonably be expected to do, or that it has acted inappropriately. I have made some minor suggestions for changes to help improve the overall effectiveness of the process.

This page includes summaries of completed investigations and will be updated as cases are completed.

Case No -1127 Complaint about the repairs to the towpath and leased buildings. 

Mr R has a long lease with the Trust for a boatyard and surrounding area. In September 2019, a sink hole appeared next to the tow path, investigations revealed that some pipework had collapsed causing the sink hole and the issue had caused a further problem with the corner pillar of the building, leading to fears that the canopy of the dry dock may be undermined. The result was that the dry dock had to cease operating while repairs were undertaken to the culvert and the dry dock. It was then found that one of the dry dock gates needed to be replaced. The Trust completed all the works in October 2020.  

 Mr R complains the Trust is deliberately attempting to destroy his boatyard business. He believes the Trust need to demonstrate a boatyard business is unviable at his historic canal site to continue with their surrounding property development. Mr R says that as a tenant of the Trust he has been subjected to on-going unfair treatment, harassment, and intimidation. He says the Trust is a registered charity but completely disregards its own published charitable aims. At the conclusion of the work Mr R argued that as a result of the way the repair was done, he is unable to operate his business safely and has declined to re-open. Mr R wants the Trust to put the culvert back to the way it was prior to the repair and to pay him business losses as he has not been able to fully operate for over a year.   

 The investigation concentrated on the way the Trust had organised the repair, the time taken to complete the work and communication issues. 

The repairs took a considerable time because of issues with the project and the impact of coronavirus on the Trust’s ability to complete the work. The Trust has accepted there were delays in completing the repair work at the dry dock and has apologised for this. I concluded the delays were not, as suggested by Mr R, a deliberate move to make the business unviable, but were the result of a series of unfortunate events, predominately, but not completely outside the control of the Trust.

The Trust is satisfied the dry dock can be safely fully functional as it is now and says it has no intention of redeveloping the land as it is a site of historical importance and the lease has over 30 years to run. 

The Trust has confirmed that the work completed allows for the operation of the dry dock and has been carried out using sound engineering principles and with regard to the heritage of the area. It is confident that the business can now fully reopen and operate in the same way it did previously. Mr R has argued the repair is unsafe because a pressure chamber has been created, the Trust, using its technical expertise has explained this is not the case. I am satisfied that the manner of repair and the way it has been conducted has been with due diligence and expertise.

Regarding the compensation claim for lost business, I have no doubt that the business has lost money. The Trust is willing to consider compensation, upon the production of evidence to substantiate the loss. I regard this as perfectly acceptable, it is normal practice to request evidence of loss before making any payment and I urge Mr R to engage with the Trust to provide the information required.   

It is clear there have been communication issues for some time preceding this issue and throughout it. Both sides need to commit to an open and honest relationship where issues are aired fully and discussed to work towards solution.

Mr R has a fifty-year lease with nearly 40 years remaining on it, which indicates that there is no plan by the Trust to redevelop the land within the future of the lease period. In addition, the site is of significant historical importance so redevelopment or sale would be very unlikely. Obviously, no one can see into the future or comment on plans in 40 years time, but for now I have seen nothing to suggest that any delays with repairs or other issues have been motivated by the Trust wanting to end Mr R’s occupation of the site. In fact, the very expensive repairs to the Dry Dock and the lock gates would suggest otherwise. 

 Case No 1069 – complaint about the position of a boat in a mooring and anti-social behaviour

The complaint was raised when the mooring manager asked Ms N to reposition her boat to the furthest point back within its berth. Ms N was concerned that this would reduce the passing gap of the canal and result in increased collisions with her boat. Ms N said that the canal was very busy at this point with pleasure craft and working boats travelling too fast and felt she was being put in a dangerous position. Ms N said she had been told by previous mooring managers to moor at the other end of the berth.

Ms N also complained that her complaint had been blocked by the mooring manager and she had been the subject of some anti-social behaviour from other moorers. She felt the mooring manager had not handled the situation well.   

The dispute is essentially about health and safety. The Trust believed that being too close to the neighbouring boat is a safety issue and Ms N believed that moving her boat is a bigger safety issue to her own boat and other canal users. It is the role of the Mooring Manager to manage the available space at the mooring to ensure the safety of all boaters, moored or moving. In this case the moorers at adjacent berths have swapped their boats for bigger ones and this has created a problem. The Trust has asked Ms N to move her boat to the furthest easterly position of her berth to allow a safe distance between her boat and the neighbouring boat. The Trust says this allows a safe passing gap for other users of the waterways and they do not consider that will pose a safety threat to her or others.

The mooring rules that Ms N has agreed to, allow the Trust to dictate where the boat should be placed. On that basis, I must conclude that the Trust has the right to request Ms N to move her boat to a position of its choosing. Any email from a previous Mooring Manager would not alter this. It was clear this is a busy part of the waterway and I recommended the Trust should give consideration to providing better signage or other visible queues near the entrance to the moorings.  

Ms N complains that because her complaint issues were not addressed at the time further problems arose. Ms N feels that anti-social behaviour towards her from other moorers was a result of the Mooring Manager, telling them she would not move her boat and they felt this meant she was blocking their craft replacements. Ms N said it took many months for her complaint to be taken through the complaints process, she believes it was blocked by the Mooring Manager and the complaints team.

I found there were failings in dealing with the issue effectively and the Trust says it has learnt lessons from this. The Trust has apologised for delays in dealing with the complaint but in view of the additional distress and inconvenience this caused Ms N I considered a small goodwill gesture should be made to recognise this.

Ms N says she has been given conflicting information about whether the Trust has an ASB policy. She believes it should have a policy and it should have used it to help her when she faced threatening behaviour from other moorers. She believes that the Mooring Manager did not follow guidelines when he chose not to follow up on her complaint of threatening behaviour on site. She says she has since found that the Trust does not have an ASB policy which she says must mean that no guidelines were followed when the mooring manager chose to do no follow up about her complaint of threatening behaviour on site. 

The Trust does not have a specific ASB policy, their moorings team manages Anti-Social behaviour at its mooring sites, between customers or customers and staff/other individuals, under the Terms and conditions of the mooring agreement, namely sections:

8.3 You must not do or carelessly fail to do anything at the Mooring Site or in the vicinity of the Mooring Site which will: (a) pose any risk to the health and safety to individuals; (b) pose a risk to the environment; (c) cause damage or nuisance to any other person or their property.

8.4 Anti-social behaviour or abuse, verbal or physical shall not be tolerated towards customers, staff or any other individuals. A failure to comply with this condition 8.4 may result in termination of the Agreement in accordance with condition 14 and/or criminal prosecution. 

I am satisfied the Trust has within its Terms and Conditions the ability to tackle instances of anti-social behaviour and its managers are best placed to deal with allegations of such behaviour. It is not clear if the Trust did take any action in this case with the individual concerned as confidences have to be maintained. However, it is disappointing that clear next steps were not set out to Ms N so there could be no confusion about next steps. I recommend that in any future cases like this the Trust clearly advise the complainant what next steps are and what action will be taken, if any. These situations can become emotive and it is important that there is clarity for all parties.

Case No 1112 – complaint about facilities at a mooring and upcoming work

This complaint started in May 2020, when the residents wrote to the Trust highlighting a number of issues with the mooring. There has been a long history with the Trust completing repairs in a piecemeal way and saying that major repairs will take place and then nothing happens. In November 2017, there was a meeting between the Trust and residents where the Trust explained the need to ensure that all water and electricity connections were compliant and a survey would be completed to assess the work needed and work, which would include the provision of these services and a new footpath, would be completed by April 2018. Although the survey was done the work did not start. The Trust had not done anything since then until this new complaint was made.

 The issues all stem from the same point, that the mooring needs some considerable work to bring it up to proper standard in terms of health and safety and regulatory requirements. The clash between Trust and residents is about how this is done and how much input the residents will have into the changes and the process of change. For some residents they will view the work as an improvement, for others as an inconvenience and unnecessary and as taking away their choice of utility supplier. 

As the landlord the Trust will have to make some decisions which some residents will not be happy with. However, it has a duty of care to put the safety of the residents first and to ensure its resources are used to best effect. During the complaint the Trust made improvements to the rubbish facilities and work started on clearing the towpath. Issues remain in relation to the supply of electricity and water connections. As there are strict regulations in respect of these utilities the Trust has a duty to ensure installations and connections are compliant.   

To achieve the best outcome for all its imperative that the Trust and residents work together and cooperatively so the mooring improvements can be done with as little disruption as possible. There will need to be changes and some residents may have to change the way they store equipment, such as gas bottles, and use the outside space. The Trust needs to ensure all residents understand why they are being asked to change and what needs to be done. 

My overall recommendation wass that the Trust and the residents work together to improve the facilities at the mooring. The Trust are the landlords who issue the mooring permits and so it falls to them to have the final say in any works to be completed and how the work will be carried out. However, it is vital the Trust remain mindful that the mooring is home to the residents, who should be kept informed of plans and progress. If it is necessary for any residents to take some action to allow the work to be completed, they should be given time to do that and the reason for the action should be explained. Communication should be open, transparent, clear and two way. There will not always be consensus but hopefully this will improve understanding and cooperation. The Trust should provide the name of a contact for any issues with the redevelopment and details of the water bill for the site.

Case no 1123-Complaint about the loss of facilities at a mooring

The complaint was raised by a group of boaters who were unhappy that waste facilities and a water point were no longer available at a mooring point. They argued the Trust had made commitments in 2019 to reinstate both the water supply and the rubbish bins and then reneged on these commitments. They did not accept the explanations provided by the Trust which they said were not reasonable excuses for not reinstating the facility. The group argued the lack of a water supply at the mooring has meant that some boaters have had to travel an extra four hours to an alternative water point and back. They were concerned about boaters having to turn round many times may be penalised by the Trust. They also complained about a lack of communication regarding Trust's decisions regarding these facilities. The group wanted the facilities reinstating.

 The Trust says that taking all the circumstances into account it was unable to comply with the previous agreement. The group are also generally unhappy with the level of provision of facilities on the canal, arguing that the high number of users should be taken into account when deciding on the level of provision on the canal and the loss of facilities across the whole region. They feel the Trust should be reacting to the demand and not relying on general policy.

 The Trust is not obliged to provide water or sanitation facilities, the decision to do so is discretionary. The Trust says it is committed to operating and maintaining a significant number of boaters facilities across its network for the benefit of its boating customers and is intending to undertake a strategic review on the effective and efficient provision of services to improve the overall offering to its customers.  On this basis, the Ombudsman was unable to require the Trust to re-provide the bins and water supply at the mooring as requested.

 The Ombudsman concluded that since both sides were led to believe that re-instatement was likely the issue was prolonged, which added to frustration for all. She considered the concern that boaters will be penalised by Trust enforcers because of the need to complete many turnarounds and seemingly returning to the same location many times to collect water or deposit rubbish. The Trust says it unable to provide a blanket assurance that boaters will not be penalised for travelling to and from these facilities. It says it generally reviews and considers 12 months of cruising behaviour, including overall range, turns and overstays, before any decision is made about whether the boater has met their licence obligations. The Trust says that solely moving to-and-fro between a couple-or-few facilities points over a licence period would likely not meet those obligations. Including visits to facilities in a planned, genuine journey that expands beyond a small part of the network, likely, could.

 The Trust says that each case is unique, but they believe that the information already published provides the desired clarity to allow boaters to create a satisfactory cruising pattern. In addition it says as the published guidance also says, if an individual boater has any concerns or difficulties then they would always urge them to get in touch with their local Licence Support Officer at the earliest opportunity and they can provide additional, personal guidance. The Ombudsman recommended that the local Licence Support Officer should take account of any issues faced by boaters without a home mooring as a result of travelling to and from facilities before considering any enforcement action in regard to the continuous cruising rules.

In regards to better communication the Ombudsman concluded that the Trust should ensure that its website is kept updated to reflect whether the water supply has been reinstated at the mooring. The Ombudsman also found that the reference to Basic mooring on the website was misleading as it said, Customers at these sites are required to cruise to the nearest sanitary facilities, which can be up to 30 minutes away. This has now been removed since the distance is greater than this.

Case no 1118 – complaint about the Trust’s ability to manage the assets in its care, following the long-term closure of a lock, leaving the complainant stranded. 

The complaint was prompted by the closure of the lock, in which Mr M was moored. He says he has been unable to use his boat in any way as there are no facilities for sanitation, refuelling and water. Mr M believes the issue was foreseeable and could have been avoided by early intervention when the problem first occurred some years earlier.

Mr M does not accept that the Trust has acted in accordance with its obligations to maintain the waterways. He says it has failed in its duty of care and has not followed rigorous procedures which could have prevented the problem occurring. He argues the problem was foreseeable and the time the lock was out of action does not fall in the bounds of ‘time to time’. On that basis he believes the Trust has not kept its side of the licence agreement and so the fair and reasonable resolution would be allow his licence to start from the date the lock opens and he has use of the waterways.  

The Trust has refused as the Licence issued to boaters is Trust permission (granted by a permit with a fee and associated terms and conditions) for them to put and keep their boat on Trust water, the fee is not calculated on the basis of availability of the network to cruise. The network is 200 years old and subject to repair work, both planned and unplanned, that would potentially impact the enjoyment of any number of boating customers at any time.  These network closures are referenced specifically in the boat licence terms and conditions.

In considering the complaint the ombudsman looked to see if the issue was foreseeable and if the time taken to complete the work was reasonable. Based on the information provided it did appear that the problem with the towpath was foreseeable. The issue had been reported some years ago and the Trust had completed a short-term repair in 2018, knowing a more permanent fix was required. The time taken to repair the issue was nine months, a portion of this was due to the Government lockdown because of the Coronavirus pandemic. However, there was a period of 25 weeks prior to this when the work could have been completed. Both parties accept the issue should have been resolved in 5-6 weeks.

There were various delays, the Trust citing poor service from its contractor. establishing where the liability lay for undertaking the repairs, accessing the site due to the presence of a gas main, plus the need to prop the roof of the dry dock once they had ascertained the size and extent of the void, all finally rounded off by the Covid delays. The Trust accepts it did take a lot longer than expected to complete this project despite the huge amount of effort to manage the Trust's internal processes, its contractor and the dry dock lessee. 

In addressing whether there has been any maladministration by the Trust in its handling of this repair the ombudsman considered if, had the project been better handled, the work could have been completed before the lockdown commenced. It seemed to her, it is more likely than not, that the work could have been completed before lockdown, had the contractors been better managed, which the Trust must accept some responsibility for. On that basis, she agreed that Mr M was inconvenienced by the delays in completing the repairs and that the lockdown was not the cause of most of that time. 

Considering how the complaint was handled the Trust recognised there were delays in dealing with it and the overall time to resolve the issue was protracted and offered a goodwill gesture to recognise this. Mr M refused as it was not the resolution he had requested. 

The ombudsman concluded that the problem which resulted in the closure of the lock was foreseeable by the Trust, the project to complete the repair was beset with problems and the complaints process was not strictly adhered to. On that basis she upheld Mr M’s complaint.

The ombudsman did not agree to the requested resolution, either for Mr M’s licence to begin when he was able to use his boat or for a refund of his licence to cover the months he has not been able to use his boat. This was because this is a breach of contract claim, which would be for the legal process not the complaints process. If Mr M wished to pursue this, he should seek legal advice on his next steps.

Regarding the complaints process the ombudsman did consider Mr M had been adversely affected by maladministration on the part of the Trust and recommended an award to acknowledge that. This was set at a level to appropriately compensate Mr M for distress and inconvenience suffered, by reason of the acts or omissions of the Trust. Both sides accepted the decision.

Case no 1111 – complaint about the refusal to clear debris in the canal which was unsightly and causing an unpleasant smell

This complaint stems from an issue with the canal which runs along the bottom of Mr and Mrs L’s garden. The complaint issues were exacerbated by their timing. The problem was first reported to the Trust at the start of a National Lockdown because of the Coronavirus pandemic. Mr L has COPD, which meant he was shielding, and unable to leave his house, making the garden his only available outdoor space. It was also the start of an unusually prolonged period of hot and sunny weather. These circumstances undoubtedly had an influence on the actions and behaviours of both parties to the complaint.

Mrs L was very distressed by the issue, she felt the Trust did not treat the problem with sufficient seriousness, in terms of the effect on themselves and the canal. She feels they were not taken seriously, and their concerns were dismissed. She would like the Trust to apologise for this and acknowledge the effect this had on them. 

All parties agree there was a problem with the canal, although the extent and the severity of the problem is disputed. The complainant felt the issue was caused by debris, particularly large tree branches, which was causing a damming effect. They report this caused a build-up of algae and a thick green slime which caused a putrid smell. They were concerned the water would rise and cover their garden with debris and that the smell was damaging to their health. The Trust describe the canal as having a build-up of vegetation, they say a smell could not be detected, that it would clear itself and that it was not a danger to health or to the garden. They considered that clearing the vegetation was non-essential maintenance and planned to clear it in the autumn, circumstances permitting. 

The problem was solved when a gentleman entered the water and using a heavy duty garden rake cleared the canal. Because of the safety and environmental issues, although understandable this action is not condoned. The apparent ease with which the problem was solved would undoubtedly only add to the frustrations felt by the complainant’s, who considered it the responsibility of the Trust to carry out this action. 

The complaint is about how the issue was handled. The Trust has an internal complaints process, the aim of which is to resolve issues as soon as they are reported. If that cannot be done, then a formal response is given and if the complainant remains unhappy a senior manager investigates and responds. The first and second level responses were completed on time and contain all the necessary explanations and next steps, they also apologise that the customer has had cause to complain and say they empathise with them about any distress caused. However, in my opinion, they could have been avoided. Mrs L said on a number of occasions that she did not want to escalate the complaint, she wanted action to be taken. Had the local operational team taken the opportunity, when visiting the site, to call the complainant and provide an explanation and reassurance about the canal it is likely the numerous contacts to the Trust and other bodies may have been avoided. 

The couple were distressed by the situation, they felt the Trust was not listening to them or taking their concerns seriously. They say that calls and emails were not responded to and this forced them to contact other agencies to get a response. Time invested by the Trust at the beginning of the issue would have avoided further distress and reduced time later spent by Trust staff dealing with the numerous calls and emails. While the Trust’s advice may not have changed and they would not have been able to clear the canal, a better explanation of this and reassurance as to the safety of the couple’s property and health would have showed real empathy to an elderly vulnerable couple in a distressed state.  

The Ombudsman recommended that The Trust should formally apologise to the couple for the way they handled their complaint. This should include an acknowledgment that the way the Trust dealt with the situation exacerbated the issue and caused further distress. 

Case No 1114- how the Trust dealt with a complaint about providing a boat licence to a convicted offender and if it should have taken more punitive action against the offender.

Mrs M contacted the Trust to say that she had found out that her neighbour was a convicted sex offender and was concerned that he was moored in an area with lots of children visiting. The Trust explained its position and offered to move Mrs M and her husband to another location. The following day the offender contacted the Trust to say he had been threatened by other boaters and had left the mooring. 

Mrs M subsequently made a written complaint to the Trust. She explained the impact of discovering she had been living next door to a convicted paedophile had had on her. She found the situation extremely distressing and asked for a refund of her winter mooring fees, as she felt she should not have to pay to live next door to an offender. 

The Trust responded and apologised for the delay in doing so. The Trust’s view of the issue was explained and they said that had the Trust been made aware of her concerns with the offender’s behaviour towards her earlier they could have assisted. The Trust was not prepared to refund her fees as they had not been in a position to do anything other than offer her a move of location. That offer remained open to her although the offender had since moved. 

Mrs M was unhappy with this response, asked the complaint to be escalated and for a refund of six weeks mooring fees, which equated to the time she was moored next to the offender.   

A senior manager at the Trust responded, setting out the Trust’s position and saying that a refund would not be made as the Trust had acted appropriately in the circumstances and could not have lawfully informed her about the offender’s criminal record. Section 17 of the British Waterways Act 1995 (the “BW Act”) sets out the circumstances in which the Trust may refuse to grant a licence. These are, where the applicant does not have a Boat Safety Certificate or valid insurance in place, and the boat either has a mooring or will genuinely navigate the network on a continuous basis. The Trust is legally obliged to grant licence applications unless one of the prescribed exceptions under section 17 of the BW Act applies. The boat licence is for the boat and apart from the individual’s contact details all information requested on the licence form are in relation to the boat, its insurance, its boat safety certificate and where it will be moored. This is because the information is relevant to the boat and not to character of the individual. The Trust has no need and no rights to ask questions about the individual applicant. 

The Trust has no lawful basis on which to require all boating customers to provide it with criminal record data or undergo a Disclosure and Barring Service Check. If the Trust is informed about an individual’s criminal record by the police, or other relevant agency, it is not permitted to share this information with members of the public (including other boating customers). Doing so would breach data protection laws. It could also disrupt official processes and pose significant risks to the safety of individuals. It is the role of the police or probation service to assess if an individual poses a risk to others around them, it is for those authorities to pass on information to the relevant individuals. 

There are no rules or regulations in place which mean that the Trust are automatically made aware by the police, the probation services, or an individual boater about an entry on the sex offenders register. If they do become aware, they have legal restrictions in place to prohibit them sharing the information with its customers or the public. The police have a statutory responsibility to manage registered sex offenders. All registered sex offenders are subject to Multi Agency Public Protection Arrangements (MAPPA)  procedures which aim to reduce the risk posed by offenders to the community. MAPPA is the process through which the police, probation and prison services work together with other agencies to manage the risks posed by sex offenders, and violent offenders living in the community in order to protect the public.

 The Trust has explained that it fully cooperates with the police and local authority requests for assistance to keep track of certain boats, and to provide any information requested for investigations or safeguarding actions. In this case, when they became aware of the relevant issue, they made contact with the police to ensure they are aware of the boat’s location, so that they were able to take any steps deemed appropriate to safeguard the community around them. 

The ombudsman was satisfied that the Trust had acted correctly in this case, it is not equipped to monitor compliance and it must leave that role to the relevant authorities. It was correct to advise Mrs M of this. The Trust could not have done what Mrs M wanted, because of its legal confines, and the ombudsman does not criticise it for that. It explained its actions and as the offender had already moved away from the area, and indeed the canal network, the delayed responses, while frustrating to Mrs M were not the cause of any further detriment. 

Mrs M has outlined how distressing she found the experience of discovering that she was moored and living alongside a convicted sex offender. It is clear that what Mrs M wants to achieve is a change in the law. The Trust and the ombudsman are bound by the current legislation and must act within the boundaries set. On that basis, the ombudsman was satisfied that the Trust acted correctly in its dealings with the offender and it cooperated with MAPPA to ensure the correct authorities were aware of his location. 

In considering how the Trust dealt with Mrs M when the complaint was raised the investigation noted Mrs M did not make a complaint about the offender’s behaviour until the day before he left the dock, which was too late for the Trust to take any action. In handling the complaint, the Trust was slow to respond to her letters which is disappointing, especially as Mrs M was clearly in a heightened emotional state. However, the Trust has apologised for this and explained the delay in the second response was due to the reduced staffing due to the coronavirus pandemic. The ombudsman was satisfied the Trust had fully explained its position and that it is not within its gift to do the things she requests.

In regard to the request for payment towards the cost of the medical fees Mrs M incurred the ombudsman concluded that the Trust should not make any contribution. The Trust has acted in accordance with the law. It cannot deny a boat licence to anyone because of their past history and it has no rights to tell others about an individual’s history.

Case no 1085 – complaint about the consequences of an aborted trip caused by the narrowing of a Lock.

Mr K complains that due to the narrowing of a Lock he is unable to navigate his Houseboat to a boatyard for its 10-year survey. Consequently, his barge cannot be surveyed and therefore he cannot get full insurance and peace of mind that the barge is structurally sound. Mr K attempted the trip in 2016 and since then has been trying to get a resolution or workable solution from the Trust.

Mr K says the barge had been a working vessel and had travelled the route for over 80 years. He wants the Trust to take some action to enable safe passage through the lock. Although the Trust has offered to help, he does not consider the options given offer real solutions and says he feels he has not been treated fairly. He pays a yearly fee to use the waterways and to moor his boat and he does not feel he is getting value for money.

As a resolution Mr K would like the Trust to complete work on the Lock to restore it to its original width to enable his barge to pass through. He estimates this to be about an inch and a half. He also wants to be compensated for the time taken to resolve the issue as he feels the Trust has allowed him to spend four years waiting for action when none was taken.

The Trust accepts there has been a narrowing of the lock width but considers the lock to be stable, the bowing of the lock is not listed as an active defect and so it is not scheduled for repair of any sort. The Trust believe they have proposed different viable solutions to Mr K which would assist him to transport the barge and complete the survey.  He has rejected all of them and the Trust says the only solutions that seem to be acceptable to Mr K are those where the Trust carries the sole financial cost and responsibility (i.e. widening of the Lock to enable his passage). 

The Trust does not accept that it has a statutory duty to enable the barge to travel through the network. The Trust quote section 105 of the Transport Act 1968 (appendix 1) and The Fraenkel Report 1975, to substantiate this. The relevant point is that that the Trust has a duty to maintain the cruising waterways in a suitable condition for the type of cruising craft that used the waterways in the nine months prior to December 1967. The Transport Act sets out the obligations on the Trust and defines the particular canal as a cruising waterway. Mr K’s barge is wider than the required size and so the ombudsman accepted there was no statutory duty to widen the lock. 

The investigation found that the Trust was aware of the narrowing of the Lock prior to the aborted journey and had noted its website of the restricted size. Had the website been checked before the journey the trip could have been avoided. On that basis the ombudsman did not consider it was fair and reasonable to compensate Mr K for the cost of the aborted trip or any other costs claimed. 

In regard to the way the complaint was handled, the ombudsman found the advice from the Trust had initially been that it would investigate and measure the lock. Once it had done this it advised Mr K it would not be completing any work on the lock and it accepted no responsibility for the costs involved in him transporting his barge. 

The Ombudsman did not uphold Mr K’s complaint. The Trust is under no statutory obligation to provide passage of his barge through the particular lock.  The dimensions of the barge are over the statutory capacity of the lock. The ombudsman accepted the Trust’s view that the cost of completing the work required to facilitate the passage was prohibitive, since this was the only vessel which had reported a problem and the Trust had to take an economic view of where best to spend its money for all users. The ombudsman concluded that the Trust had acted in a way that is fair and reasonable to all its users.

This page includes the complete list of case summaries for the year

Case No 1091 – complaint about the allocation of a vacant mooring

Mr J had been resident at his mooring for a number of years and wished to move to a different location within that mooring. He had experienced several issues at his current location, which he had complained to the Trust about, which he believed would be alleviated by a move. When a site became available, he was told that he could not move to it as it had already been allocated to another boater from the same mooring who had submitted a written request to move when the site became available. Mr J complained to the Trust as he felt he had been placed at a disadvantage by not being advised to register his request to move in writing. He argued the Trust should have been aware of his desire to move because of all his previous complaints and he had not been treated in a fair and reasonable way.

The Trust said that it had followed its policy and acted in line with the Mooring Agreement. It had given the site to the person who had requested a move first. The Trust said it was unaware that Mr J wished to move to a different site within that location and had thought he wanted to move elsewhere.

Mr J was also unhappy with the way his complaint was handled, citing obstruction and delays. As the mooring requested was no longer available, he wanted to be compensated by the Trust as a resolution to his complaint.

Having considered the history of events and the timings of the previous complaints raised by Mr J the ombudsman was satisfied that the Trust had been made aware that Mr J wanted to move to another mooring at the site. However, it was clear that the other boater had registered their request to move sites before Mr J and so the Trust allocated the mooring on a first come first served basis. As this was in line with its policy the ombudsman concluded that Mr J had not been treated unfairly and there was no evidence of maladministration in relation to the allocation of the vacant mooring. On that basis, the ombudsman did not uphold that element of the complaint.

In relation to the way the complaint was handled, Mr J was unhappy that his complaint was initially treated as being about a policy decision, since this would correctly fall outside the complaints process. When Mr J contacted the Ombudsman, it became clear that he was alleging that he had suffered injustice, as a result of maladministration, since the Trust had not noted his request to move to a different mooring on the site. That was the substance of his complaint which was within the complaints process and the issue was then escalated to second level and a response provided. The Ombudsman was satisfied that once it was presented with the facts the trust dealt with the complaint correctly and apologised for any delays.

As the ombudsman found no evidence of maladministration by the Trust the complaint was not upheld and no further action was required of the Trust.

Case No 1082– complaint about alleged failure to act in accordance with the Trust’s Equality process and complaints procedure.

Mr H says his complaint was not properly answered at first and second level and he has not been treated fairly. His complaint concerned the actions of another boater who he says harassed him and caused him distress and the Trust did not assist him in dealing with this. He complains that the Trust does not have an Unreasonable Behaviour Policy for boaters which means it is not following its duty of care to protect disabled boaters.    

My investigation concentrated on the way the complaint was handled and whether the Trust could have used 7.6 of its terms and conditions which say, in essence, that boaters must not behave in a manner that would cause nuisance to another or damage to property.

I upheld Mr H’s complaint that his initial complaint was not responded to in line with the complaints policy and he had to raise the issue again in order to get a response. In addition, not all aspects of the complaint were responded to at the second level stage and this caused further delay.

I did not agree that the Unacceptable Behaviour Policy should include protection for boaters. The policy is designed for use by the Trust staff when presented with challenging customers. However, I did agree that the use of 7.6 of the Trust’s terms and conditions may have helped to manage the situation had it been used and had Mr H presented enough evidence of the problem he was facing. I did not find any evidence that the Trust had failed to act in accordance with its equality policy. 

Case No 1084 – complaint about the refusal to renew a mooring agreement because of a breach of the site rules.

Mr F complained that the response of the Trust to its discovery that he was renting out his boat on a long term let was disproportionate. The Trust refused to renew his mooring agreement saying he had broken the agreement by renting out his boat without permission of the Trust and against the rules of the site. Mr F believes the decision was motivated by the enmity of the Trust staff towards him because of his whistle blowing on individual and corporate misconduct. He says he has not been provided with the opportunity to either, sign up to a new policy regularising long term lets or to stop renting out his boat within a given 28 day period, to prevent enforcement action. He says this is neither reasonable nor compliant with Trust policy.   

The Trust says it was presented with irrefutable evidence that Mr F’s boat was being advertised for short term lets which is not permitted at his mooring. He was challenged and agreed the advert would be taken down. He was advised to contact the Trust for more information if he wished to rent out his boat. Some months later the Trust was made aware the boat was being rented out on a long term let, without the permission or knowledge of the Trust. As the Trust had already advised him against renting out his boat it said when his mooring agreement ended it would not be renewed.

Mr F challenged this as being disproportionate to his actions. He said it was custom and practice for boats to be rented out and the Trust was known to turn a blind eye. He argued he had been discriminated against as he had made a number of high level, high profile complaints to the Trust in the past. He compared this to being discriminated against because of whistle blowing.

The investigation focussed on the relevant terms and conditions, if he was given an opportunity to comply, whether whistle blowing legislation was relevant and how the complaint had been handled.

The mooring agreement and the site specific rules of the mooring say the moorings are for the private use of the boat and any breach can result in the loss of the mooring. Mr F was aware that he did not have permission to let out his boat but said he made a reasonable assumption, based on past actions by the Trust, that no enforcement action would be taken. When action was taken, he argued he had not been given an opportunity to comply with the rules and ask the tenants to leave or make the arrangement official. The Trust argued he had been warned some months earlier and so it took immediate action when presented with evidence of the long let. After some initial confusion it was clarified during the investigation process that no business licence to rent out boats would be allowed at his particular moorings.

In considering if Mr F had been discriminated against I concluded that the Trust had acted in accordance with its rules and policies when presented with evidence that the rules had been broken. The Trust has a duty of care to everyone using the waterways and must know who is occupying boats in case of any incidents or accidents. I found no evidence to suggest that Mr F had been treated in a disproportionate way because of his past actions. I concluded Mr F had been the victim of disgruntled tenants who presented the Trust with evidence of the let rather than a victim of discrimination because of his past actions.

I did find some problems with the way the complaint was handled and suggested changes to process to ensure complaints are dealt with in accordance with the policy, however they arrive at the Trust.

Case No 1070 – complaint about the way the Trust handled a claim of negligence including an allegation of maladministration in relation to information provided to its Loss Adjustors.

Mr G complains that his boat was damaged when it collided with a swing bridge which was not fully retracted and made a claim for compensation for loss of its use, while repairs were completed. The claim was refused on the basis the collision was caused by poor helmsmanship. Mr G became aware, via a SAR, that misinformation in the form of an alleged diary note may have been provided to the insurer and questioned the Trust about this. The Trust did not answer his questions and said that the matter needed to go to court if the customer was unhappy with the response. Mr G wished the Ombudsman to investigate the allegation of negligence, that there was insufficient warning that the bridge did not sit flush with the copping stones, and the veracity of information provided by the Trust to its insurer.

As Mr G had submitted a negligence claim and indicated he would pursue the issue via the courts I did not consider the question of negligence. I investigated the likelihood that there was maladministration as a result of misinformation being passed to the Loss Adjustor and if the Trust had followed its complaints process correctly.

I concluded there had been delays in the handling of the complaint for which the Trust should apologise and pay a small goodwill gesture. In regard to maladministration, I concluded there was no evidence of this as the disputed note was only a part of the decision making process. However, the way the Trust had dealt with the note was poor and had exacerbated the time spent dealing with the complaint.

Case No 1051 – complaint about the payment of mooring fees for an unused mooring because of insufficient depth at the mooring

Mr E complained that he had paid for a mooring for two years that he was unable to use as the mooring needed to be dredged to allow his boat safe access. He said that the staff at the Lock were aware of the issue and had agreed that dredging would be done and advised him not to return until it was complete. The mooring was not dredged. The customer refused to pay for a third year and asked that the Trust forgo payment for the next two years in lieu of payment already made and then dredge the mooring. The Trust denied there was an agreement in place and maintained the mooring was of sufficient depth to allow the boat to moor, according to the dimensions provided by the customer on his boat licencing certificate.

I did not uphold the complaint as the evidence provided indicated that had he tried to moor at the Lock he would have been able to. There were long periods of time when there was no communication between the parties. It appeared to me that Mr E had continued to pay for the mooring in order to ensure it would be available to him should he decide to return. The Trust had refused to allow one of the Mr E’s boats to return because of foreseeable problems but that was not the boat associated with the mooring agreement. I was satisfied that the mooring was available for use throughout the period and so it was reasonable for the Trust to expect payment for it.

Case No 1031 – complaint about the removal and eventual destruction of a residential boat

Mr D had been required by a Court Order to remove his boat from Trust waters, but he said that the Trust had given an undertaking that it would allow him to remain as long as he found a home mooring.

His main argument to me was that the Trust had provided incorrect information to the court about the availability of home moorings in the area, and that although he had booked a mooring it was not yet available when the Trust came to seize his boat. He regarded this as a breach of the undertaking, but my view was that as the undertaking had been made in court it must be for a court to decide whether it had been breached.

Mr D’s boat was a historic wooden narrowboat. In court he had stated that if the Trust, in seizing it, removed it from the water it would dry out, and one may as well burn it. The Trust did take it out of the water and transported it over 100 miles by road to a dockyard where it was put back into the water, but it sank, and despite attempts to refloat it, sank again. The Trust put the boat on brokerage but said there was no interest, and that it was eventually broken up and destroyed.

The Trust had said that it had taken the boat far away because of the risk that the complainant would try to damage or reclaim it, but based on my meetings with the complainant and discussions with Trust staff my view was that this was an unfounded concern.

Case No 1061 – complaint about the way the Trust manages water resources at lakes constructed to feed the canal network

Organisation C represents stakeholders with an interest in the lakes as a local amenity and as a wildlife haven. The lakes were constructed as a feeder system for a canal, and that remains their primary purpose, but they are also a prominent local feature and a key part of the local ecology. They are fed by brooks, one of them having a sluice, which when closed diverts the water to one of the lakes, and when open allows the water to bypass the lakes, although this does mean that if the level in the lake is above the cill of the sluice, water can flow back out of it and into the bypass channel. The sluice also has an orifice in it, which when the sluice is closed allows some water to keep flowing into the bypass channel. There is a Memorandum of Understanding (MoU) between the Trust and the Environment Agency (EA) which aims to prevent water overtopping the dam wall of the lakes and flowing into an SSSI.

The complaint was that over a period of many years the Trust had not properly managed the water resource, in particular that it left the sluice open for long periods during the summer months, resulting in the direct loss of water from the lake into the bypass channel, as well as the consequential result that any further water coming down the brook was not available to top up the lake. Organisation C also said that the orifice in the sluice wasted water.

In its formal responses to the complaint, the Trust focussed on recent weather events, and the need to comply with the MoU, which was especially important during the summer months when an algal bloom develops and it was necessary to prevent this from flowing over the dam wall. However, the organisation argued that the Trust had not dealt with its criticism that the alleged mismanagement had been going on since 2002.

I said that although it was not stated, the implication of the MoU was that the sluice would be closed when the lakes were not likely to overspill. The organisation disagreed with the Trust’s statements about its management of the sluice. It said that the Trust did not open them when the lakes were full, but that they were left open from April to October regardless of water levels.

As it happened, during the time I was involved (the first half of 2019) there had been adequate rainfall (in stark contrast with the hot dry summer of 2018 when the water levels had been severely reduced), and the sluice had been left closed, meaning that water was diverted to the lakes. Whether that was because I was involved I cannot say. Nonetheless, I found it hard to reconcile what seemed to me to be the Trust’s unequivocal statement that its operation of the sluice was designed to satisfy the twin objectives of maximising water level while minimising the risk of overspill, with Organisation C’s statement that in most years the Trust left the sluice open for long periods in the summer months.

I cannot direct the Trust in what is after all a matter of policy. I could require it to do certain things if I were to conclude that there had been maladministration. The purpose of the MoU is to agree and control the distribution of the flows to the lakes. It is not a statement about how the Trust will manage its water resources but how, for example, it will avoid overspill into the SSSI. Although the implication may be that the Trust will try to maximise water levels, the MoU does not say this, and I did not conclude that there had been maladministration.

The original purpose of the lakes was to feed the canal network. If the management of the lakes left that short of water, it would not lead to an injustice suffered by Organisation C, although it may potentially affect canal users. Nonetheless, I said that the Trust did present the lakes as an amenity, as a beauty spot and as a centre for leisure activities, and it would seem reasonable to assume that it would endeavour to maintain water levels at the maximum level commensurate with satisfying the MoU, and any operational requirements. The Trust accepted that a review of the MoU was due, and that in doing so it would welcome the views of Organisation C and give it an adequate opportunity to comment.

Although I made no recommendations I did say that this did not mean that I thought the Trust could not more effectively manage the water resources to satisfy a wider range of stakeholders, but because I had not concluded that there had been maladministration.

Case No 1039 – complaint about the noise from a canal pump in a domestic property

Ms B lives in a house, next to a canal lock, which incorporates an old pump house, to pump water from below the lock back to the pound above it. The original pump was steam-powered but was some time ago replaced by an electric pump. The pump sits at the bottom of a large flooded chamber, below one corner of the house, and pumps the water up through a pipe to an external housing from which it flows back into the canal. It is one of a series of pumps designed to conserve water which flows down the canal as boats travel through the locks. It is needed more in dry conditions, and during the cruising season when the locks are used more often.

Ms B said that the noise of the pump causes a nuisance, which some years ago was less of a problem. Its maximum hours of operation are 6 am to 6 pm, but during the time she has lived there it has been used more of the time, partly because of drier conditions and partly because of increased boat traffic. She had spent many hours, over a long period of time, trying to get the Trust to do something to reduce or eliminate the noise, but although the Trust had done some things there was no obvious solution nor any clear plan to address the problem. She was unhappy with what she saw as the lack of action by the Trust, long delays in getting things done, and its failure to sort out the problems in a property which it had been content to sell for residential use.

The Trust had recently engaged the services of an external acoustic consultant, and during the time I was involved it issued a draft and then a final report. Its recommendations included de-watering the chamber to enable an inspection and repair of any defects, improving the mounting of the submersible pump, installing a replacement pump, and reviewing and introducing management protocols to limit instances where noise levels were raised due to filter clogging.

I had no doubt that the noise of the pump was a severe nuisance to Ms B, and that it caused her distress for long periods, not just when it was running, but even when it was not running because of anticipation of it coming on unannounced. However, I was limited in what I could do. The only solution guaranteed to be effective would have been to relocate the pump outside the perimeter of the house, but the cost of this would undoubtedly have far exceeded my maximum award of £100,000, and I could not require such a remedy. In discussion with Ms B and Trust staff on a visit to her house, it did seem that there might be alternative remedies which, while perhaps being less effective, might reduce the nuisance level, such as to install a quieter pump with less capacity but run it for longer hours.

During my investigation the Trust was considering the situation, and decided that it would provide funding for further investigatory and remedial works. Having seen the noise report and the recommendations, my view was that there probably nothing more I could usefully do, and that I should cease my involvement and leave the Trust to get on with the work. I was confident that it would carry out the proposed actions, and that my presence was not required to ensure this. Although this did not seem to me to be an entirely satisfactory resolution of the complaint, because it would be unlikely to eliminate the noise, Ms B felt that without my involvement matters would not have progressed as far as they did, and that I had managed to achieve something she had not.

Case No 1046 – complaint about the Trust not taking timely action in relation to complaints about overloaded boats

Organisation A is a residents’ association, comprising members who overlook a river. Their complaint, as dealt with by the Trust, was about what they saw as its failure to deal with their request to it to take action in respect of what they said was the overloading of boats. The boats were operated by a local hire boat operator, providing services for people to scatter the ashes of deceased relatives on the river. The organisation had also raised a number of other issues with the Trust, but which had not been considered formally in the complaints process, and which it wanted me to look at.

There is a patchwork of law and regulation covering waterways and their use, and for many of those uses the Trust has no responsibility for taking enforcement action. The organisation’s view was that at least for some of them it would be better if the Trust, given its prominent role in waterways issues, were to take the lead.

The issue which the Trust had considered was whether it should have acted more quickly in response to Organisation A’s request for action in respect of the overloading of boats. This is in fact not the responsibility of the Trust, but that of the Maritime and Coastguard Agency (MCA), even for inland waterways. The Trust did eventually alert the MCA to the issue, but it took several months, by which time the organisation had contacted the MCA directly. The Trust did accept that there had been delays, for which it apologised. I agreed with the Trust’s own assessment, but did not consider it appropriate to go further or to make any recommendations.

The Trust does have a process in place for dealing with such matters, although in this case there was a delay which should not have happened. This did not reflect Organisation A’s experience, but it did not mean that a new process was needed; rather, the Trust should ensure that the existing process worked.

On the other issues, I said the most I could do would be to consider whether there was any merit in them being examined in greater detail. If I reached the conclusion that the Trust did not have jurisdiction, there was probably nothing to be gained by the submission of formal complaints.

The issues included Organisation A’s view that the hire boat operator was ignoring Environment Agency (EA) guidance about the scattering of ashes, for example that it should not go ahead in windy conditions, near residential locations, or places used for fishing and bathing. The organisation said that this had previously been EA policy but had been downgraded to guidance. It argued that the Trust should take over the responsibility for enforcing the guidance, but I said it did not have appropriate legal powers to take enforcement action, and that if it were to do anything it could only be on a voluntary basis. If it attempted to take any enforcement action it could simply be ignored.

On the issues of the numbers of boats operated by the boat hire company, and the hours of operation, these were matters for the Local Authority to deal with, in relation to what is known as the Certificate of Lawful Use. On whether, at the mooring operated by the boat hire company, more boats were being used for residential purposes than the permission allowed, this was also a matter for the Local Authority to enforce.

This is the complete list for the year

Case No 1042 – complaint about the Trust’s refusal to dredge an offside mooring

Mr L had a new narrowboat constructed, with a steam engine. He said that when launched it had a draught of 2’ 6”. He cruised a few miles along the canal and moored it at an offside, end of garden (EOG) mooring, for which he was being charged by the Trust’s Waterside Moorings business. While there, he added ballast, increasing the draught by around 6”. However, the water depth was insufficient for him to bring his boat close to the shore, and so he had to cross to it on a plank. On one occasion he fell into the canal and injured himself.

In addition to the shallow depth at the mooring, he was almost totally unable to cruise along the canal because the engine had insufficient power, a problem exacerbated by the increased draught of the boat. Although he had a 12 month mooring agreement, Mr L terminated the contract before the end of that period, having already cancelled his direct debit mandate a few months earlier. This left him with arrears of about £500, which the Trust was seeking to recover.

While at the mooring he had asked the Trust to dredge it, but it would not do so. It explained that while it had a statutory requirement to maintain sufficient depth in the main navigable channel, this did not apply to the canal bank at an EOG mooring. It did offer a paid-for service, which he refused.

The Trust referred Mr L to the Terms & Conditions for a mooring on Trust water which is accessed from private property, in particular to the section on maintenance limitations, which states that the Trust does not warrant that there will always be adequate depth of water at the Mooring Site, and that where statutory maintenance obligations apply to a waterway this is applicable to the main navigable channel only.

Even though it was moored by private land, Mr L’s boat was still on Trust water. I accepted that the situation had been very difficult for him, but I could not prevent the Trust from charging for the mooring, nor could I prevent it from seeking to recover the unpaid charges.

Case No 1024 – complaint about the Trust’s failure to take action about nuisance caused by a neighbour at a marina, and to remedy site maintenance issues

Ms K had been a residential moorer for several years at a basin managed by Waterside Moorings. A new neighbour moved onto an adjacent mooring, but after a short time there was a breakdown in relationships between Ms K and the new moorers. She complained to the Trust about the actions of her neighbour, and what she saw as the Trust’s failure to take appropriate action. She also complained about general site management and maintenance issues, which she says were not satisfactorily addressed by the Trust.

In the end, she was unable to resolve the matter and left the mooring, having cancelled her direct debit without paying for the two months’ notice period. As a resolution she wanted the Trust to cancel any arrears, and to reimburse the mooring charges she had paid, from the date her new neighbour arrived. By the time I became involved, Ms K had left the mooring so any option to remedy the dispute between her and her neighbours was not available.

She complained to the Trust about various actions by her neighbours, such as taking over communal land and dominating the car parking spaces. However, the situation was compounded because the neighbours then submitted counter-accusations about her.

In its second level response the Trust said its view was that the issues related to disagreements between Ms and her neighbours. It added that although the specific alleged behaviours could not be independently verified, there was good evidence that the Waterside Moorings team had responded promptly and reasonably to her concerns.

I said I could not reasonably expect the Trust to take action based on anecdotal evidence about the views of other moorers. I noted that the Trust’s primary involvement must be limited to establishing whether there had been any breaches of the mooring terms and conditions.

I accepted that Ms k may have found herself in a very difficult position, but it is not my role to intervene in disputes between neighbours. I had no doubt that there was a substantial level of hostility between Ms K and her new neighbours, but it was not clear that the Trust had a duty to intervene.

As to whether the Trust should reimburse her mooring fees, Ms K had a legally binding contract and, in the absence of a finding by me that there had been maladministration by the Trust, I could not require it to reimburse the fees she had already paid. She did have a small outstanding debt, and I said that as a way of drawing a line under the complaint the Trust should as a goodwill measure cancel it, but as Ms K did not accept my conclusions it was not required to do so.

Case No 1026 – complaint by a workboat operator that the Trust was acting too readily on complaints by residents about noise

Business J operated a workboat in the London area, carrying out maintenance and repairs for other boaters. It initially had a rivers-only licence, but extended that to a canal and river licence. It worked on a roving trader basis, having agreed with the Trust, after a long approval process, the scope and nature of its operations.

After the business had operated without any problems for some time, the Trust received complaints from some residents about the noise from the workboat. After a mooring ranger had asked the business to move the boat to another area, the business complained that the restrictions effectively prevented it from operating in residential areas, which was where the majority of its customers were. The business also said that in one place where complaints had been made, some of them were probably vexatious, given that they were about noise made at times when no work was being done.

In justifying its requests to the business to avoid causing a nuisance, the Trust referred to what it called “common nuisance”. The business argued that this was an arbitrary definition, and did not conform to the definition of statutory nuisance. The business pointed out that it had been operating in accordance with the terms of the licence for 18 months without any complaints being received, and that to comply with what seemed to be a new set of requirements would at the very least seriously undermine, and probably destroy, its viability. The business said it had invested a substantial sum of money in the operation, which would be lost.

The boat had a continuous cruiser licence so it was not permitted to remain in one place for more than 14 days. The business also said that in discussions with a local authority (LA) in one area where there had been complaints, the LA and the residents said they were content with the level of the noise provided that the boat moved on within 14 days. Bearing in mind other complaints I had considered, from residents living next to visitor moorings, where the Trust’s view was that the applicable definition of nuisance was statutory nuisance, I was concerned about the Trust acting on the basis of “common nuisance”. Although the other cases were about leisure boats, my scrutiny of the terms and conditions applying to business and leisure licences did not reveal any differences between the requirements about limiting damage and nuisance.

In respect of a Trust suggestion that boats which were being worked on could be removed to less populated areas, the business argued that this would be inconvenient and difficult. I noted that where work is being carried out on fixed structures, it was not possible to do so elsewhere, and I was not convinced that it was necessary to move boats to other places as long as any noise could be restricted by time of day.

After I issued my draft report I concluded that an imposed settlement was unlikely to satisfy both parties, and that a mediated solution would be the most likely way forward. Given that there had not been any complaints for some 18 months after the business started its operations, it seemed likely that a mutually acceptable solution could be found, which would be responsive to complaints but which would allow the business optimal flexibility in its operations. As it would need a more rapid means of communication between the Trust and the business, a defined process was agreed, which would provide a feedback process in the event of the Trust receiving complaints about the business operations.

The process would not rule out the possibility of noise leading to complaints, but it would mean that any complaints could be dealt with before they became serious, and alternative solutions could be considered.

Case No 1044 – complaint about problems arising from the purchase of a mooring

Ms I purchased a mooring at a Trust marina via the Waterside Moorings website. The mooring descriptions include key information such as the price, contract duration, maximum dimensions and, where applicable, the Berth number. In this case the contract duration was 12 months, which would renew automatically for a further 12 month period if not terminated.

The normal process, once the mooring has been purchased, is for the Trust to send an email acknowledging the purchase, and a welcome pack. Ms I said that she received neither the email nor the welcome pack, both of which would have included the mooring details.

However, at no time during the 12 month period did Ms I occupy the mooring. She said that on one visit she was told that the berth she had purchased was a different one from that in the contract, and was larger. She said on that basis she had placed a deposit on a boat which could fit within that berth but which would have been too large for the one she had bought, although she did not complete the purchase.

Ms I was distracted by personal issues during the period in question, and I accepted that this would have made things difficult for her. She also said she would not be making the complaint if she did not have absolute faith in her view of events.

I said that while I must consider arguments, I could not regard a complainant’s belief in their position as proof that their recollection of events is what actually happened. It is usually the nature of the complaints that come to me that the positions of the parties are deeply entrenched. Given that I could not in such a case agree with the views of both parties, I had to see where the evidence led.

It was unlikely that I would ever be able to establish whether the Trust had actually posted a welcome pack, and if so whether it had been received, but I had no reason to doubt that the email had been sent. There did seem to me to be a number of opportunities where any misunderstanding about the berth number (and therefore dimensions) could have been clarified. I was also satisfied that the berth dimensions would have been available on the Waterside Moorings website. Given that the larger moorings command higher prices it seems unlikely that Ms I would have either committed to more space than she wanted, or conversely have purchased a mooring that would not have been big enough.

Nonetheless, she had entered into a binding agreement and I could not undo it. The Trust did offer to reimburse three months’ charges after she unintentionally allowed the contract to renew. She had wanted all her charges to be reimbursed but she accepted the Trust offer.

Case No 1038 – complaint about the Trust allowing widebeam boats to use a narrow canal

Mr H is a boater with many years’ experience, and uses the North Oxford Canal. He complained that the Trust permitted widebeam boats to use the seven mile section of the North Oxford Canal between Braunston Junction and Hillmorton, despite it being designated as a narrow canal, which raised issues about safety and navigation. He also complained that the Trust had not objected to the provision of widebeam boat facilities at a new marina near the middle of the seven mile section.

The canal was not designed as wide canal and, while it is physically capable of accommodating widebeam boats as far as Hillmorton Locks, the locks are too narrow to allow them to go further north. The Trust accepted that it was not suitable for widebeam boats, but it did not prevent them from using the southern section, noting that although there had been some incidents they were not of such a level and frequency to warrant closing the canal to widebeam boats, or at least enforcing its designation as a narrow canal.

The Trust did accept that boats wider than the seven feet designation could become grounded or stuck, and also that if two boats, at least one of which was a widebeam boat, met bow to bow, there was one section where in the worst case scenario a boat might have to reverse about 2.25 km. The Trust said it had carried out a risk assessment, and that while it had concluded that there may be some potential temporary obstructions, no permanent obstructions had been identified.

However, the Trust did say that its assessment acknowledged that navigation by widebeam craft required good boat handling skills as well as due care and consideration to other users. It added that the assessment recommended that the Trust keep under review the extent of use of widebeam vessels on this part of the network, in line with the national approach, and consider further ways of bringing the increased challenges of navigation to the attention of widebeam vessel owners. It said that further work was being undertaken with its Navigation Advisory Group  (NAG), and that after discussions with NAG they had supported the Trust’s approach.

Mr H considered that the Trust had made light of the hazards. He felt that despite the Trust’s point that it would keep the situation under review, the situation could get out of hand before it could react.

Although the Trust was clearly aware that the canal was not suitable for widebeam boats, I had to accept that its decision not to bar them from access was a matter of policy. My Rules state that my role is to consider injustice suffered as a result of unfair treatment or maladministration. What constitutes maladministration may be open to argument. If, for example, a policy clearly led to detriment, then I may be able to require the Trust to take action. In this case, even if I had found evidence of maladministration there was no clear evidence of detriment. That is not to say that there will not be so in future, but the Trust has stated that it will keep the situation under review, and I cannot assume that there will be problems nor, if so, that the Trust will not take appropriate action.

Case No 1041 – complaint about the Trust’s refusal to provide compensation following a data breach

Mr G complained that following a data breach by the Trust, it had refused to agree to his request for compensation. The breach had occurred in the Trust’s licence renewal system, whereby contact details of other licensees were included in details sent to other licence-holders. The system was operated by an external contractor, on behalf of the Trust. The Trust accepted that there had been a breach, and reported it to the information Commissioner’s Office (ICO), in line with the requirements of the General Data Protection Regulation (GDPR). It stressed that no bank details or associated financial information had been included in the breach.

Mr G said that worry about the breach, and not knowing how or when any of his personal information may be used for fraudulent purposes, had caused him to lose sleep, and had affected him mentally and physically. As a resolution of his complaint he wanted the Trust to waive a year’s boat licence fee.

I explained that it was not my role, but that of the ICO, to decide whether there had been an infringement. Although the Trust had reported the breach, the ICO had not, at the time I became involved, made a decision on the matter, nor whether any action would be taken. I said that I could not pre-empt any decision by the ICO.

Article 82(6) of the GDPR, and also section 168 of the Data Protection Act 2018 (DPA 2018), provide for compensation by way of the courts.

The Trust’s view was that the risk to individuals was very low, and I had no reason to disagree with this assessment. I said that if it were clear that there had been an infringement, and further that Mr G was able to show that as a direct result he had suffered damage (including distress), it might be open for me to decide that the Trust should compensate him. However, in the absence of evidence of actual loss, and also given that no financial information was disclosed, I did not consider that it would be appropriate for me to recommend that the Trust do so.

Mr G is not prevented from asking a court to consider his claim. However, I noted that even if he had suffered loss, any compensation would be unlikely to equate to exactly one year’s licence fee, which was a considerable sum, amounting to several hundred pounds. I said that if he were to ask a court to consider compensation, he would have to provide a detailed justification for his claim.

Case No 1029 – complaint about arrangements for a private event at a Trust location

Mr and Mrs F hired a room at a Trust location for a family event, for which they had paid a fee of £1,400. As well as the room, the price included various services such as the provision of boats on the adjacent canal to take people to the event from a nearby location, as well as staff to assist at the event. It also included access to the room the day before and the day after the event.

They signed a Hire Agreement, which sets out the standard terms and conditions. They also agreed a Schedule, which described what would be done at what time, such as seating and table arrangements, what the arrangement for music were, and the timing of taxi boats etc.

Mr and Mrs F said that a number of things had not gone as planned. Among the points in their complaint were that several of their guests had missed the boats to take them and their guests to the venue, as the departure times were different to what they had agreed. They said they had been rushed out of the venue at the end of the evening as they had to prepare for another event the day after, and that because they were rushed out they were not given the opportunity to collect any food and take it with them.

Following its investigation the Trust accepted that there had been problems, but did not accept all of the criticisms. It did apologise, and offered a goodwill reduction on the fee of £100, but Mr and Mrs F did not accept it. In bringing their complaint to me they said they were seeking a 50% reduction in the fee.

Having read the evidence of both parties, I met Mr and Mrs F at the location. We discussed the complaint, and went through some of the specific points. It seemed that part of the problem may have been that shortly before the event the key person they had been in contact with had left. Whether this led directly to the problems may have been difficult to ascertain, but I accepted that things had gone wrong, and that the £100 goodwill offer did not fully reflect the experience of Mr and Mrs F.

My view was that the complaint should probably never have come to me in the first place, and that it should have been resolved without the need for my intervention. It did not seem to me that carrying out a detailed investigation, and writing a formal report, would be the most effective way of resolving the matter. It would certainly have taken much more of my time and that of the Trust and the complainants, so I proposed a mediated settlement. Although it was more than the original £100 goodwill offer, and less than the 50% rebate Mr and Mrs F had sought, both parties agreed to it.

Case No 1025 – complaint by the Wide Boat Action Group about the conduct and outcome of the Trust’s licensing policy review

The Wide Boat Action Group (WBAG) complained that in conducting its recent licence review, including the public consultation, the Trust exceeded its statutory powers as set out in the Transport Act 1962, and did not act in line with its own requirements as set out in its governance documents, with the result that the review, and its outcome, was flawed.

The case hinged on the interaction between policy and process. As an Ombudsman I cannot determine or influence the Trust’s policies, but WBAG argued that the way the review was carried out was fundamentally flawed, and that as a result the outcome was unfair in the way that it affected owners of widebeam boats.

The review was the first on the structure for licence fees carried out for at least 20 years, and was prompted at least in part by representations from various boating interest groups.

Licence fees are currently based on length alone, but the key outcome of the review was that the Trust decided it would increase premiums for boats wider than 2.16m (7’ 1”). Boats up to 3.24m wide would be charged 10% more than the standard fee, while boats wider than that would be subject to a 20% premium. The Trust proposed to introduce the extra charges in four equal steps between April 2020 and April 2023.

At the earlier stages of the review WBAG had wanted the Trust to consider other issues, such as the limited accessibility of the network to wide boats, the lack and inaccessibility of facilities, as well as moorings and winter moorings and a range of other issues.

WBAG disagreed with the outcome of the review, and that the other matters which it asked to be considered were not included. It argued that wide boat owners had been unfairly represented in the consultation process, and that the Trust had had the opportunity to ensure that they were more fairly represented but opted not to do so. WBAG felt that the Trust had contrived the review in such a way as to ensure that narrower boats were favoured over wider boats.

I accepted that wide boat owners were less well represented in the consultation, as a proportion of the total number of wide boat owners, than were owners of other boats, but I did not accept that under-representation was the same as unfair representation. The Trust had invited licence-holders to respond, and so to a large extent the respondents were a self-selecting group. WBAG argued that the Trust should have ensured that all types of boats were equally well represented, but the Trust pointed out that it was not a vote. I noted that there were still around 390 wide boat owners involved in the process, which would probably have covered a broad range of views. I also noted that even if it had been a vote, wide boat owners would still be in the minority.

In respect of the limited access to the network, WBAG felt that this should be reflected in the licence fee. It disagreed that the licence was in effect a permission, and should be related to availability, but the law does seem to regard it as a permit and included no reference to usage. WBAG also argued that the Trust was not able to determine charges in the way it “thought fit”, but the law does state that the Trust may set charges in a way it thinks fit. I did comment that this did not mean that it could make changes arbitrarily and without basis, but I did not reach the conclusion that it had.

In essence, WBAG argued that both the review process and its outcome were flawed. I accepted that some of WBAG’s concerns might be legitimate, but said that the review and its content was a matter of policy for the Trust and I could not have required it to include the range of topics that WBAG wanted. In my report I neither agreed nor disagreed with the outcomes of the review, but stated that the Trust’s policy was outside my jurisdiction.

I said that disagreement with the outcome could not be regarded as indicating that it was unfair. I did not reach the conclusion that there had been maladministration in the conduct of the review, and I did not uphold the complaint.

WBAG also made the argument that in carrying out the review the Trust had acted on complaints from boating groups. It questioned how those complaints could lead to a change in policy, but that WBAG was unable to complain about the changes in the policy. I said that it depended on the definition of a complaint, and whether it was a complaint about maladministration or a policy issue. The Trust is not compelled to consider a complaint (however it is phrased) about a policy issue, but if it does so, as in this case (for example because considers that policy changes are appropriate), then it is not compelled to consider a complaint about the revised policy.

Case No 1009 – complaint by a resident that the Trust had refused to accept responsibility for the maintenance of the river wall, and had also illegally removed his boats from the riverbank adjacent to his property

Mr E lives in a property on the bank of a river which has been canalised by the installation of locks. He had spent a significant sum of money renovating his section of river wall, and had also moored two boats by his property.

He argued that an Act of Parliament some three centuries old had stated that if the navigation authority at any time raised the water level, and that the adjacent land may be more liable to be overflowed or damaged than previously, then it would proportionately raise and heighten the banks, as well as repair them. He also argued that the same Act granted owners and occupiers of adjacent lands the right to use boats without charge.

Mr E asserted that the river level had been raised, and while I accepted that this might have been the case, the only evidence I could find was in relation to works carried out in the later 19^th century to allow it to accommodate larger boats. The Trust said that any historic increase would have coincided with a requisite increase in the height of the river banks at the time.

Mr E had carried out his repair works nearly 20 years ago, but said that he had only recently become aware that the water level had been raised.

I did not consider whether, if there had been an increase in water level, the banks had been raised. The Trust had argued that in any case any claim would by now be statute-barred under the Limitation Act 1980. It added that there are some exceptions to this, such as in the case of latent damage that becomes apparent only some time later. However, the Trust said it was difficult to see how any exceptions could apply here, particularly given the very long period of time since the works were carried out. It suggested that if Mr E did wish to pursue this further, he should obtain his own legal advice in what was a complex area.

I said that if Mr E did still believe that the Trust should pay him compensation for any damage caused by it or any of its predecessors having raised the water level, I could only suggest that he seek independent legal advice. I explained that if he did have any basis for a claim it was likely to hinge on detailed interpretations of the law, which were beyond my level of expertise. I added that on the purely practical issue of demonstrating that works carried out so long ago led to him needing to carry out remedial work over a century later, he would need to establish cause and effect.

On the issue of his boats, British Waterways wrote to Mr E some 12 years ago explaining that he did not need a licence while his boat was stationary. However, in 2016 the Trust wrote to him stating that this was incorrect, and that he did indeed need to license his boats, and urged him to do so. He did not do so, and after notifying him that it would take enforcement action it removed his boats.

The Transport Act 1968 removed any local mooring rights, but Mr E’s view was that unless compensation had been paid for any such loss, as provided for within the Act, he retained mooring rights. He also said that the original Act had granted the rights “in perpetuity”, but I said that what one Act of Parliament could give, another could take away. My view was that the retention of free mooring rights would not have been made contingent upon the payment of compensation. I added that as he had purchased the property after 1968, any historic mooring right would not have been reflected in the price, and that if there had been any loss it was not he who had suffered it. I also noted that 50 years on, it seemed to me that any possible claim would have fallen by virtue of the Limitation Act 1980.

Case No 1012 – complaint by a boater about the Trust’s refusal to accept that she had a home mooring, and subsequent events

Ms D had a mooring, declared as a home mooring, which she cancelled on securing a mooring elsewhere. Although she did inform the Trust that she left her old mooring to move to a new one, she didn’t state where it would be. Internal correspondence from the Trust shows that some three months later it was under the impression that although Ms D had won a mooring in an online bid, she was not using it. Shortly after that, and after a review of the boat’s movements, the Trust wrote to Ms D, saying that on the basis of her cruising pattern she would not be offered a further licence as a continuous cruiser (“CCer”). Ms D immediately replied to say that she did have a home mooring and that she had never been a CCer. It seemed that Ms D’s mooring was acceptable as a home mooring, but it had not been included in the Trust’s register (although an adjacent mooring was).

Although Ms D did not complain to the Trust about the situation at the time, she was very unhappy about a number of issues, including why the Trust had not followed its recommended guidance about notifying boaters about unsatisfactory cruising patterns, how it made an assessment of her boat movements despite there being many gaps, and why the Trust had not apologised for its failures.

In its responses the Trust said that in the gap between Ms D leaving one mooring, and her next mooring being included on its register of moorings, it had recorded her as MAC (mooring awaiting confirmation), and in line with its terms and conditions it had treated her as a CCer.

The case raised issues about the frequency and completeness of sightings, and how the Trust dealt with a situation where it was unsure of a boat’s mooring status. Ms D also complained about what she regarded as a derogatory language in the Trust’s internal documents (which she had obtained following a Subject Access Request).

There were gaps in the sightings, particularly for a period of a few weeks when Ms D undertook a long journey, part of which was on non-Trust waters, and there were also periods where there were frequent sightings in popular areas. I did ask the Trust about how it managed sightings, and it explained that the frequency may vary according to location. The Trust does advise boaters to keep their own logs, in the event that this may be needed to fill in gaps. I do not in any case have any influence over how it manages its sightings.

There had clearly been some confusion about Ms D’s mooring location, which was corrected, but in the meantime the Trust had, after leaving one voicemail message, written to her to say that she would not be offered a new CC licence unless she got a home mooring. The Trust did say it was reviewing its processes to ensure that the relevant verification steps were followed at an early stage where it was unclear about a boat’s mooring status.

The Trust had apologised for shortfalls in service, and offered Ms D a goodwill award of £50. I broadly agreed with the Trust’s own conclusions, but felt that the award offered did not fully reflect the problems, and increased it to £100, which Ms D accepted. I did not, however, conclude that the language in the Trust’s internal documents could reasonably be regarded as derogatory.

Case No 1000 – complaint about the Trust’s refusal to recognise a canalside property as a legitimate home mooring

Mr C, a liveaboard boater, has for several years owned a piece of land next to a canal, which he wished to use as his declared home mooring for boat licensing purposes. For a number of years he had given the name of a nearby marina as his home mooring, but in 2017 the Trust questioned whether this was a legitimate location, and the only way Mr C was able to license his boat was to declare himself as a continuous cruiser.

Mr C’s central claim was that there were mooring rights which had not been extinguished by the Transport Act 1968 (the 1968 Act), but said that the Trust had refused to list what rights did exist, instead putting the onus on him to prove what rights existed. He maintained that there was an enabling act, by which mooring rights existed, although he was unable to provide any evidence that, even if such an act existed, any mooring would not have been extinguished by the 1968 Act.

Mr C’s evidence that he had a mooring right included a clause in the British Waterways Bill (which became the British Waterways Act 1995), about the extinguishment of certain rights, but this clause was not included in the Act. On that basis, he argued that such rights still existed.

I sought clarification from the Trust on whether any rights might have survived the 1968 Act. In response, the Trust said that section 105(5) of the 1968 Act brought to an end any right of navigation previously conferred by an enabling act over the its waterways. It explained that section 115(1)(a) extended the definition of “right of navigation” for these purposes to “any right to use or keep any vessel or craft on the Trust’s waterways”.

The Trust stated that, therefore, any right conferred by an enabling act for Mr C to moor his boat was extinguished by the 1968 Act. It noted that the clause in the British Waterways Bill appeared to have related to a range of other rights (unrelated to the right to moor) that may have been conferred by enabling acts, and not the right to moor.

I could not require the Trust to recognise the location as a home mooring without evidence that a mooring right existed, and I did not uphold this element of the complaint.

Mr C also raised the issue of whether the Trust could charge him for mooring at his land, on the basis of it being an End of Garden (EOG) mooring. He disputed the Trust’s right to charge for having an EOG mooring, on the basis that he owned the land and that all the Trust was offering him was an anchorage. For this reason he said he did not want an EOG mooring. On the matter of whether he was seeking only an anchorage and not a mooring, I had no reason to conclude that a mooring was other than comprising two parts; the water and the land, and I found no evidence of maladministration. I noted also that there was no residential property on the land, and that under the Trust’s current policy an End of Garden (EOG) mooring would not be permitted.

Case No 1003 – eviction of a moorer from a marina

Mr B moored his boat at a BWML marina. He said that following a campaign of intimidation and victimisation against him by the marina manager, he lodged a formal complaint, but that this led to him being evicted from the marina for breaching mooring rules. While he accepted that he had breached some rules, he argued that another moorer was at least as culpable as he was but had not been evicted.

Although Mr B provided video evidence, I could not agree with his interpretation of the events recorded. I did not consider that he had been treated differently from the other moorer for no objective reasons. I accepted BWML’s argument that he had breached some of the rules, and I concluded that BWML had acted reasonably in evicting him.

Case No 1001 – complaint about the issue of a 14 day reminder to a continuous cruiser

Ms A, a liveaboard boater, had been sent a 14 day reminder letter stating that her boat had been in the same general area for more than 14 days. She argued that the Trust’s guidance indicated that if she had received three valid reminders in three months she would be subject to enforcement proceedings and would be in danger of losing her home. She wanted the reminder letter to be withdrawn.

The Trust’s position was that as the letter itself was not part of its enforcement process it would not withdraw it.

I can deal with the consequences of events which have happened, but not ones which might happen, but haven’t. Ms A had received only one notice, and even if three notices were issued in three months it would not automatically lead to enforcement action. I could not assume that the receipt of one such notice put her at any greater risk of being made homeless. I said that even if I were to conclude that there had been any maladministration I could not, on the basis of what might have happened but had not, conclude that she had suffered any injustice, and I did not uphold the complaint.

In response to the draft report the Trust pointed out that its guidance no longer referred to three, but to “multiple” notices. I noted the point although it did not materially change my analysis or conclusions. Ms A said that at the very least the Trust should provide her with an apology confirming that her cruising pattern during the period in question was compliant with the legislation and with the Trust's guidance. However, the Trust had at no point said she was not compliant and this did not alter my conclusions.

This is the complete list for the year

Case No 942 – complaint about charges made by the Trust for a domestic water supply pipe crossing its land

Mr N lives in a property bounded by Trust waterways and land. There is a water supply to the property, which runs across just over 70 metres of Trust land. The pipe is buried in land, part of which is over a canal tunnel just a few yards from one end of the tunnel. The pipe was not laid under statutory powers by a water utility and is therefore subject to a private agreement between the householder and the Trust.

In or around 1955 the annual rent for the conveyance of the water pipe was £1. Mr N bought the property some ten years ago. Under pressure to complete, he negotiated an agreement whereby he would pay the Trust £420 + VAT per annum, but said that he reserved his position. The Trust had also offered a 250 year easement at a cost of about £21k + VAT. If the pipe had been laid under statutory powers by the local water utility the Trust could not have charged as much, but this was not the case.

When Mr N contested the charge the Trust stated that it had used comparable situations in other locations as a guide to the level of charge. The Trust also commissioned an independent valuation by a RICS surveyor. The valuer explained how a market value may be determined for the land, on the basis of the value of the land put out of use by the presence of the water pipe. She said that the nature of the land, which she described as dense amenity woodland, and which was covered by various policies including Green Belt, removed any “hope value”. She calculated that based on a land value of £5,000 per acre, and “applying the usual practice of 75% of the vacant possession value the easement payment would total £237.”

She also noted that easement payments on commercial or oil pipelines were normally 75% of the vacant possession value of the strip of land, adding that payments of this nature were dependent on width and scale but had previously reached £30 per metre run. She said that “applying a maximum payment of £30 per metre run the easement would total £2,190.”

After reviewing the figures, of £237 and £2,190, she went on to say that in her professional opinion neither was considered to be market value for the proposed easement. Instead, she stated that the best way of reflecting market value for the easement was to capitalise the Trust’s annual licence fee.

In my report I noted that the valuer had proposed two methods of calculation by reference to land value, but had then reverted to the Trust’s original figure as the one which best reflected market value. I also noted that she did not consider in her report how the Trust had arrived at its annual charge of £420 + VAT.

This is what is known as a “ransom strip” scenario, where the only viable means of getting a water supply is across Trust land. The Trust did state that there was another way of laying a water supply, under statutory powers, via Mr N’s entrance road, and that this might cost less than the easement charge, but whether or not this was the case was outside my remit. Unless it was the case (a point which Mr N disputed), he effectively had no choice but to agree to the Trust’s charges.

This was a private agreement between the Trust and the householder. The level of the charge is a matter of Trust policy, and it was not within my remit to determine a charge or a basis for charging, so I did not uphold this element of the complaint.

There was a separate issue, which was that the Trust had proposed that the pipe, which was in the ground above the end of the tunnel, be re-routed under the canal at the complainant’s cost, on the basis that if there were a leak it could cause problems. Having considered the likelihood of any leak developing, and the possible consequences, I did not accept that this should be done. I asked the Trust for further information about its policies and approaches to such situations, and I was satisfied that it was not a matter of policy to re-route such pipes, nor had the Trust provided evidence that the presence of the pipe posed a significant risk to its assets. The Trust accepted this and said the pipe could be left where it was.

Case No 988 – complaint about anti-social boaters, dealing with overhanging branches, and the Council election process

Mr M has a boat on a permanent leisure mooring on a canal at a rural location. He complained about anti-social behaviour by hire boaters, primarily from a local town, the Trust’s failure to deal with overhanging tree branches at the mooring, and what he regarded as failings in the Trust’s 2015 Council election process and its decision to hold it online only.

His complaint was primarily about the activities of hire boaters, and problems such as drunkenness, noise and other anti-social behaviour. His boat is on the outside of a bend, and a number of boaters have failed to negotiate the bend adequately and have collided with his boat, causing many scuffs and some dents.

The Trust accepted that such problems exist, but put the responsibility primarily on the operators. The operators do provide briefings for boat hirers, but Mr M said that in many cases the messages were ignored, and that once boaters had put a few bridges between them and the hire location they would load up with more people and crates of beer.

Mr M wanted the Trust to implement remedies such as requiring hire boat operators to take more responsibility for the actions of the hirers, and also requiring hirers, for example, to enter into short-term licence agreements so they would be subject to the same sanctions as full licence-holders.

There are obligations on hire boat operators and hirers to ensure that the hirers do not cause a nuisance. However, the Trust is limited in its ability to police such activities. It tries to ensure that boaters are aware of their obligations, and unless it witnesses any events it generally relies on reports being made to it, in which case it approaches the owners/operators to discuss their responsibilities. The Trust noted that legislation is limited in this area, although it had achieved success in its approach to ‘educate’, adding that this was evident in all areas and not just Business Boaters. It did say that vast majority of these boats did operate safely and within sensible speeds. Although I accepted that Mr M was very unhappy with the activities of anti-social boaters, this is an area which is primarily a matter of policy and is beyond my remit. I found no evidence of maladministration.

Mr M also wanted me to require the Trust to consider the matter at Council level, and for the Council to undertake a national survey. I explained that I could in any case consider only his complaint, and not what might be happening nationally.

On the issue of the Council election process the Trust said that it had the authority to determine the election process and that it was entitled to decide to hold an online-only election in 2015. It was a policy matter in which I could not intervene and I did not uphold this element of the complaint.

On the matter of overhanging branches, there had been two major branch falls in the previous 18 months but which had not caused injury or major damage. The Trust had been slow in dealing with the matter, which it explained in part as arising from difficulty in contacting the adjacent landowner.

The Trust originally offered Mr M a goodwill award of £25 to recognise the tree problems as well as general customer service shortfalls. My view was that this did not reflect the shortfalls, and I recommended that the Trust increase its offer to £100.

Case No 974 – complaint about the closure of a long-term mooring (see also Case No 972 below)

Mr L moored his boat at what was a permanent mooring adjacent to a lock. The Trust decided to close the mooring, citing a number of reasons including a land ownership dispute, the fact that the site does not have planning permission for residential use, and poor access to the site, across a lock gate.

Mr L disputed the validity of the Trust’s reasons. While he accepted that the land dispute (see case no. 972 for an explanation) might make letting the mooring difficult, he argued that it was not a reason to close the mooring. He contested the Trust’s point about access, noting that the lower lock gate had two guard rails, and also the Trust’s point about maintenance costs, noting that any such costs had over the years been more than covered by mooring fees.

It was clear that over a period of many years Mr L had very much enjoyed the mooring and its location, and I could not doubt that it was a much valued contribution to the local landscape and community. My view was that the decision to close the mooring may have been precipitated in part by the land ownership dispute, but even if so it did not mean that if the Trust were to regain the land it would automatically reinstate the mooring. The Trust said it had made a policy decision to close the mooring, which is not something I can reverse.

As in case 972, I required the trust to notify Mr L of the outcome of the negotiations about the ownership of the land.

Case No 986 – complaint about the refusal by the Trust to allow a moorer to renew a mooring agreement

Mr K had found an unused mooring on a canal, which the Trust had seemed not to be aware of, and moored his boat there. He successfully applied for a mooring, and was offered a one-year agreement, subject to the proviso that it was on a trial basis. Although the Trust initially wanted to terminate the mooring with 28 days’ notice, Mr K reached an agreement with the Trust that he could remain on the mooring for the rest of the 12 month period.

A few months into the mooring agreement the Trust wrote to Mr K (as part of a batch emailing) saying that if he opted to pay his mooring fees by direct debit (DD), his mooring agreement would on expiry be automatically renewed for a further 12 months. Mr K then made an application to pay by direct debit, but once the Trust received his completed paperwork it realised that he would not be given the option to renew.

Mr K presented several arguments why the Trust should be bound to renew his contract. He said he could reasonably conclude that the DD renewal email was personal to him, because it had no other addressee names. He said he could reasonably assume that this email countermanded all previous correspondence, which had indicated that his mooring contract would not be renewed. He maintained that by replying to the DD renewal offer the Trust had in any case been contractually bound to honour what he said was the agreement to allow him to keep the mooring.

I disagreed with all of Mr K’s arguments about whether he and the Trust had entered into a binding agreement that his mooring agreement would be automatically renewed. I did not accept that he could reasonably have concluded that the DD email was personal to him, and certainly not on the basis that there were no other addressee names present. Their inclusion presence would have been a breach of data protection law, and in any case the email was not addressed to him by name. I did not accept his argument that in law the Trust had made an offer which, if he accepted, it would be bound to accept.

The Trust also argued that as a widebeam vessel, at that particular location, Mr K’s boat posed a navigational obstruction. Mr K did provide dimensions for the boat, the canal, and a bridge hole, arguing that two boats could pass alongside his boat, but the Trust challenged the figures, and video evidence I reviewed did not support Mr K’s figures.

Although one could reasonably question exactly how often two boats may be expected to pass alongside Mr K’s boat, and whether there might be a serious problem, I could not question the Trust’s right to determine its own mooring rules, or whether the boat did impede navigation. I said that in any case the Trust had made it clear at the start of his 12 month mooring agreement that it would not be renewed.

The Trust also said that the presence of Mr K’s boat had led to a number of complaints. The Trust did provide me with details of the complaints, and the complainants, but did not provide them to Mr K.

He argued that it was a principle of natural justice that an accused person be made aware of the accusation, and of the identity of the accuser, but I did not agree. What was important was that I had details of the complaints, which enabled me as an independent person to reach my own conclusions. I did not consider that it was necessary for the proper completion of my investigation for me to disclose such information to Mr K, but I would not in any case have divulged such information without the consent of those involved.

I did not uphold the complaint, and I said there was no reason why Mr K should not have to vacate the mooring.

Case No 978 - complaint about nuisance caused to local residents by boats at a visitor mooring

This shares common issues with two previous cases I have looked at (Case No 837 and Case No 848). Mr J’s house backs onto a canal near a visitor mooring. There is signage, which states that it is a Quiet Zone, and asks moorers to minimise the running of generators, the burning of anything other than smokeless fuels, loud music, and any other disturbance to those nearby. Mr J complained about the nuisance caused by moorers, primarily as a result of diesel fumes created when generators are running. He wanted the Trust to ensure more effective enforcement of the mooring conditions, but should it not be possible to reduce the nuisance then he wanted the Trust to close the mooring.

The statutory responsibility for assessing public nuisance lies with the Local Authority (“LA”), under the Environmental Protection Act 1990. In this case Mr J had made many complaints, and the LA had made a substantial number of monitoring visits, conducting both visual and air quality inspections but said that on no occasion had evidence of statutory nuisance been found. The LA said that there was therefore no action it could take via this route.

The difficulty here is that nuisance is defined in statute, and that the responsibility for assessing whether there is nuisance lies with the relevant LA, not the Trust. I had no doubt that the emissions from boats, particularly of diesel exhaust, were sometimes a nuisance to Mr J and his neighbours (and indeed residents in other locations). However, unless the LA found evidence of statutory nuisance I could not require the Trust to close the mooring or take any other action. Residents can themselves bring a legal action, but I accept that it may be difficult, unpleasant and time-consuming, with no guarantee of success.

Case No 989 – complaint that the Trust had not fulfilled its obligations regarding a strip of land between the complaint’s property and a canal

Ms I lives in London close to the Grand Union Canal, in a street which is broadly parallel with the canal. Neither her property, nor those of her neighbours, extends to the water’s edge, but are separated from the canal by a narrow strip of land owned by the Trust but which was leased by its predecessor, British Waterways (BW), to the Local Authority (LA) about 35 years ago. Ms I complained that a neighbour had erected a shed on the land, without permission, and also that the land was in a poor state of maintenance.

The Trust explained that the reason for letting the land was to divest itself of a maintenance burden, explaining that this was quite a common approach by BW when it had very little resource to deal with such surplus land. It said that given the significant access constraint the land had very little development or lease potential, and that what BW had done was to enter into an agreement whereby someone else would maintain it on its behalf.

The complaint had been continuing for some time when I opened my investigation, with Ms I having contacted the Trust on a number of occasions but without any clear response or resolution, or having formally considered her complaint.

The LA had decided not to take enforcement action against Ms I’s neighbour, and the Trust had not objected. The Trust had leased the land to the LA, but the LA is not in my jurisdiction so it was not open to me to require it to do anything.

The Trust provided me with a copy of the lease. Although it seemed that a possible interpretation was that the LA may not allow the building of a structure without seeking the Trust’s permission, if that were the case then the Trust had effectively granted such permission.

The lease was clear on the point of maintenance, stating that the LA must at its own expense maintain the land and keep it in good repair and condition, and that the Trust would be entitled to carry out works at the LA’s expense if the LA defaulted on any of the provisions in the lease.

Noting that BW’s aim in divesting itself of the land was to relieve itself of a maintenance burden, and also that the Trust did seem to accept that it was in a poor state of repair, I decided that the Trust should write to the LA, pointing out its maintenance obligations. The Trust had originally made an offer of a goodwill payment of £50 to reflect its shortfalls in dealing with the complaint, an offer which I maintained.

Case No 972 – complaint that the Trust had allowed a third party to register a strip of land adjacent to a canal (see also Case No 974 above)

Mr and Mrs H live in a lock cottage. On the offside of the canal, across the lock, was a long-established permanent mooring with space for a few boats. Some years ago the owner of the land adjacent to the mooring had registered the land up to the water’s edge, and this had not at the time been picked up by the then navigation authority, British Waterways. The land subsequently changed ownership, and more recently the new owner of the land had asked moorers, who had previously used what they thought was Trust land, to remove their property.

The key points made by the complainants were about the protection of assets for the benefit of the nation, the community, and individual boaters, as well as their own enjoyment of the location.

After Mr and Mrs H complained to the Trust, it did take steps to review the situation. A boundary expert was brought in, who concluded that there was no longer any reliable evidence of exactly where the boundary should be, and it was decided that evidence about historical occupation might prove helpful in resolving the matter. The Trust also decided that the mooring was no longer viable, and that it would close it down.

The Trust had issued an interim second level response to the complaint, stating that it was formally in dispute over the land, but that nothing had been concluded. It said that a later response would conclude matters. However, nothing happened, and the complaints brought the matter to me because they felt that the Trust had not done enough to try to regain the land. In their view the mooring was an important contribution to the local landscape, which was valued by the local community.

I sought clarification from the Trust on what action it intended to take. It was clear that the matter was far from simple, but my view was that it would not be a satisfactory way to conclude the complaint simply to require the Trust to make a decision about whether it would try to regain the land. That was the final position reached by the complainants, and why they asked me to investigate. Instead, I asked the Trust to state what it would do, in other words whether it would, or would not, try to regain the land.

The Trust decided that it would try to regain the land, saying that a plan was being drawn up to bring together the various threads, and also bearing in mind the possible need to gain access to the canal bank should the need arise. I said that the subsequent steps would be a matter of policy for the Trust, which I could not influence. I stressed that I could not require it to regain the land, because that might be excessively expensive, and ultimately impossible to achieve.

I did consider the issue of whether, if the Trust succeeded in regaining the land, it would reinstate the mooring. The Trust cited a number of reasons for closing the mooring, including the cost of maintaining it, and that access, via the lock gates, was not safe. It also said that there would be no net loss of moorings, as other moorings had been re-established elsewhere. Although the complainants disputed the Trust’s reasoning, I did not in this investigation make a decision on this matter, partly because it was not one of the core issues in the complaint, but also because any formal conclusion I reached would have pre-empted my conclusions in case no. 974, which was about the same location but primarily about the loss of the mooring.

As to whether there had been any maladministration in relation to the historical registration of the land by the neighbouring landowner, this was too long ago for me to consider and to reach any definitive conclusions, and even if I had made such a finding there was nothing I could have done. The complainants did criticise the way that the Trust had handled their complaint, and I said that it would be helpful in any future situations of a similar nature if the Trust were to take a more proactive, logical and consistent approach. However, as this was not related to the loss of the land in the first place and would not lead to it being recovered, I did not recommend any remedial action. The only requirement I made was that the Trust notify the complainants of the outcome of the negotiations about the land.

Case No 963 – complaint by a boater about the administration of the Boat Safety Scheme

The website of the Boat Safety Scheme (BSS) states that it is “a public safety initiative owned by the Canal & River Trust and the Environment Agency”. It is not a subsidiary of the Trust, but it does have a complaints process. There are several complaint routes, most of which relate to such matters as technical issues or examiner conduct and consistency, for which the Waterways Ombudsman is not the final stage of dispute resolution. The BSS is administered by the Trust, and as BSS Office staff are subject to the Trust’s standards and conditions I can consider complaints about BSS Office staff member administration, processes and conduct.

Ms G bought a boat, but subsequently discovered many faults, which caused the boat to fail several BSS examinations, and which she was in the process of sorting out. At the time Ms G came to me she had made a complaint which the BSS office was considering via a procedure known as BSSQA006 (for which the Waterways Ombudsman is not the final stage of dispute resolution). Although the BSS website does not state how long such an investigation takes, the Trust at one point explained that more complicated cases typically took 3-6 months.

Ms G said that she had wanted the report to present as evidence in a private court action. When I first became involved, I was told that the investigation was nearing completion, but in fact it took far longer than the Trust had originally anticipated. Ms G then wanted to complain to the Trust about the delay in completing the BSSQA006 procedure, and at my request the Trust fast-tracked the complaint. In its conclusions it accepted that there had been unreasonable delays in the BSSQA006 procedure, but noted that it should not feel under pressure to meet third party deadlines. It made an offer of a goodwill payment of £50, which she did not accept.

At Ms G’s request I opened an investigation into her complaint. She accepted that I could not consider the issues of the problems with her boat, and could only look at what the Trust had done in relation to its administration of the BSS.

The Trust did eventually complete the investigation and issue the report following the BSSQA006 procedure, but it took more than 12 months from the time Ms G first contacted it.

In my report following my investigation I said that while the problems with Ms G’s boat did not arise as result of failures in the BSS office, the delays in the process did cause her substantial distress and inconvenience. She could reasonably have expected a better level of service, and the process took far longer than either she or the BSS had anticipated. However, despite making many requests for information she was not updated in a timely manner. I accepted that the Trust had to adhere to the correct process, and also that there were some delays which beyond its control. Even so, my view was that the delays had been unacceptably long, and the Trust had consistently failed to keep Ms G updated about the progress of her BSS complaint.

I decided that the Trust should make a goodwill payment of £300, which Ms G accepted.

Case No 990 – complaint from a tenant about treatment by the Trust after he had signed a lease for a business unit

Mr F entered into a 10-year lease for a business unit managed by the Trust, with a mutual break clause after five years. Rental payments and service charges were to be paid quarterly in advance, after an initial three month rent-free period.

After Mr F failed to pay the first charges when they became due, the Trust took steps to recover payments, but he did not pay, and the matter was eventually dealt with in the County Court. The Court ordered that Mr F must pay all outstanding sums due, and that if he did so by a specified date the lease would continue and the Court Order would have no effect. By the due date he had made no payment at all, and so forfeited the lease. After the Trust took steps to recover the debts, Mr F submitted a complaint to it that he had been treated unfairly.

Among his specific complaints were that as a new tenant he had been poorly treated, that the Trust had not forwarded his post, that he had not initially been provided with main entrance keys, that when he took over the lease the unit was still let to another tenant, that the Trust prevented him from connecting to the foul drainage system of a neighbouring unit, and that although the rent-free period agreed in the lease was three months, the Trust had then extended it to four months but later denied that it had.

Mr F argued that the Trust’s actions had meant that he had been unable to proceed with his business plans, and was asking for compensation for the loss of his business.

The allegations were serious, and there were substantial sums of money involved. I decided to visit the location to talk to the Trust staff responsible for its management, and the Trust’s portfolio investment manager.

What became apparent was that Mr F had not made the specific complaints until after he left the unit, and once the Trust had started taking action to recover its debts, which was many months after he signed the lease.

One of the most serious issues was Mr F’s complaint that the Trust had withheld his post. At the time he signed the lease, he had made a planning application regarding connection to foul drainage, but had not at that point received the local authority response, although it had been posted to him at the unit. He said that had he known the contents of the response earlier he could have decided whether to sign the lease.

As to whether the Trust had withheld his mail for a number of weeks, the Trust said regarded itself as a good and responsible landlord, and said that it had absolutely no incentive to do so. Mr F had been advised by a solicitor for many months prior to signing the lease. I said that if the contents of the letter were so crucial, he could have delayed signing the lease. Mr F said that the cost of providing foul drainage was very high, and argued that the Trust could, after all, have allowed him to connect his unit to the foul drainage system of a neighbouring unit, but the Trust said that this was not possible.

I did not accept Mr F’s argument that because some materials were left in the unit when the lease commenced, it demonstrated that the Trust was subletting it to another tenant; indeed the Trust said that it would remove the materials as soon as it could, but noted that Mr F had stressed that there was no urgency. There was a minor delay in providing a front door key, but while the Trust was getting a new one cut Mr F did have access via his own front entrance.

The reason for Mr F’s view that the rent-free period had been extended to four months was because of an error in an email from the Trust. However, this email was not sent until some three weeks after the first payments were due. I did not accept that this was sufficient justification for withholding all payments. I also pointed out that when it came to contractual matters, the terms were as stated in the lease. I did not conclude that an error in an email could be regarded as fundamentally changing a contract which had already been signed.

Mr F was aware of the debt and did not contest it. I said that he had entered into a binding contractual agreement to pay the rent and other charges, and that a County Court had ordered him to pay the charges, a decision which I cannot overturn.

Mr F wanted cancellation of all the charges, plus compensation for what he said was the loss of his business. I found no evidence of maladministration, and I did not uphold the complaint. I could see no reason why he should not remain liable for the charges.

Case No 909 – complaint about the way the Canal & River Trust (the Trust) has dealt with a situation where HS2 would cross one of its canals

Ms E operates a business boat on a canal in an area near London which will be affected by the High Speed 2 rail link (HS2). Her view was that HS2 should either have been routed a different way, or via a tunnel, but accepted that it was by now probably too late to achieve such an outcome.

Among her points that the Trust had not recognised the importance of the canal corridor through the area, and had viewed other areas affected by HS2 as being more important. She said that the Trust should survey the canal water and corridor and establish a baseline/standard of the existing ecology enabling HS2 contractors to be held to account, that it should challenge the proposals to relocate electricity pylons on the basis that there was a more ecological solution, and that it had not kept her and other businesses in the area adequately informed of construction works and subsequent impacts of HS2 on the canal and canal corridor.

The Trust explained that earlier on in the planning process it had decided that rather than oppose the development it had entered into a Side Agreement with HS2, which contains many provisions relating to the planning and construction, the maintenance and restoration of the local environment both during and after construction, biodiversity, land contamination and pollution control. It also includes the requirement for HS2 (and not the Trust) to ensure that surveys are carried out before and after the construction work, together with the requirement for HS2 to remedy, to the Trust’s satisfaction, the impacts of any damage. The Trust regarded the Side Agreement as an important means of ensuring that it would have as much control over the operation as possible, on its land and within 15 metres of the boundaries of the land.

I cannot interfere with or influence the Trust’s policies. I can consider only whether there has been maladministration, such as where the Trust has done something it should not have done, or failed to do something it should have done.

This complaint differed from the majority of complaints I receive, in that the Trust was almost certainly not in a position to make unilateral decisions about the situation, or perhaps even to significantly influence the plans for HS2.

I was satisfied that the Side Agreement did, within limits, give the Trust significant influence over HS2’s activities. Although I had no doubt that the larger area was rich in biodiversity (for example it included SSSIs), the Trust’s canal and assets were only a relatively small fraction of the area which would be affected by HS2, and my view was that the other landowners, such as the Local Authority, also had a role to play.

The Trust had expressed surprise that Ms E did not accept that it was doing all that it reasonably could. I accepted that Ms E was passionate about the area, and while I could not give her an assurance that her worst fears would not come to pass, I saw no evidence to suggest that those fears were well-founded.

Part of the difficulty was that the Trust had been unable to persuade Ms E about its neutrality, its concern for the protection of the area and its biodiversity, and its statement that it was not responsible for conducting a survey. Above all, it seemed to have been unable to persuade her that the Side Agreement would be helpful in ensuring, for example, that the impact of construction would be minimised, that biodiversity would be protected, that there would be adequate pollution control, or that reinstatement would take place to an appropriate level.

Ms E said that business such as hers, as well as others depending on the canal and the wider conservation area, would be adversely affected by HS2. I accepted that this might be the case, but that at the time of my investigation any effect could only be speculative and unquantified. I added that even if I had concluded that the Trust might have successfully been able to oppose the development, but taken a decision not to do so, there was nothing to suggest that I could possibly have regarded it as an example of maladministration, rather than a policy decision. I could require the Trust to take some remedial action only if I were to have concluded that there had been maladministration, but I did not reach that conclusion. As the Trust was for practical purposes powerless to stop the development, it would be up to Ms E and others to seek compensation, if appropriate, from HS2.

The Trust did make it clear that it was willing to work with local people, who would be valuable resources in providing information during construction. Any feedback from local people to the Trust would be invaluable in ensuring that this happened, although this did mean that the Trust would need to share with them what HS2 was expected to do to minimise the impact of the construction phase and to ensure that once completed any loss was made good.

I said that no major work had yet taken place, and that it was not possible to anticipate events that had not yet occurred. I could not conclude that the impact would be greater than was reasonably necessary, or that if so it would be as a result of any maladministration by the Trust, and I did not uphold the complaint. I noted that to the extent that other landowners were involved, Ms E could take up the matter with them.

I added that it would be several years before the work was finished. While I could not rule out the possibility that there may be grounds for complaint in the future, it did seem to me that the best way to ensure that the work had the least possible impact on the area, as well as the population and wildlife, was for local people to work with the Trust.

Case No 966 – complaint about the issue of a restricted six month licence for a boat without a home mooring

Mr and Mrs D are liveaboard boaters, based in Gloucester on the Gloucester and Sharpness Canal (G&S). As they do not have a home mooring they are subject to the Trust’s continuous cruising requirements. The Trust was not satisfied with the boat’s cruising pattern and decided only to allow them, on renewal of the licence, to have a restricted six month licence. In making their complaint, Mr and Mrs D said that the Trust restriction did not take into account the fact that the G&S is only 16 miles long, and that to cruise further meant taking their boat onto the River Severn, which they regarded as potentially hazardous. They also said that the Trust had not provided a full explanation for the restriction, that there was no clear guidance about what a “neighbourhood” or “locality” was, that the tone of the Trust’s correspondence was threatening, and that they were being discriminated against due to their age (i.e. that they are still working and that it is difficult to get the time to cruise further afield).

The Trust’s evidence showed that the majority of the cruising had been within a 15 km range, although there were two periods when the boat was sighted outside this range, which were at the end of April 2016 and in the middle of June 2016. The Trust said that the 15km cruising range did not meet the requirement at the time which was that the cruising range should be not less than 15-20km over the period of the licence. While it accepted that there two periods when this range was exceeded, it did not meet the requirement that the stated range should be met or exceeded “over the period of the licence”.

As to whether allowances should be made for boaters on the G&S because of the geographic limitations, the Trust said that while it did accept that there were some difficulties in cruising away from the canal, it did not accept that the difficulties were of such a nature that it was prepared to reduce the maximum cruising range. That is a policy matter for the Trust which I cannot influence.

The Trust’s key point was that no matter how frequently a boat moved, it could not remain on the G&S for the licence period and be compliant. It said that compliance could be achieved only if the boat left the G&S. It added that in this case the time spent away from the G&S was not sufficient to achieve compliance.

I concluded that the Trust did recognise the difficulties of navigating beyond the extremes of the canal, in particular at the southern end, where exit into the Severn estuary would require a pilot. However, while it also accepted that a northbound exit might be difficult in certain conditions, it did not accept that navigation up the River Severn was not possible.

I was satisfied that the Trust had, either before or during the complaint process, provided an explanation of why the complainants had been issued with a restricted licence, and also what a neighbourhood or locality was.

On the issue of whether the Trust had discriminated against the complainants because of their age, and the fact that they work, I did not conclude that it had. Under the Equality Act 2010 age is a protected characteristic. However, I could not see that the Trust could be regarded as having discriminated against the complainants on the basis of their age. The complainants said that the discrimination was based on the fact that they still worked, but being employed is not a protected characteristic. I said that given that the Equality Act prohibited discrimination on the basis of age (apart from any exceptions which must be justified) there could be no link between age and being employed, adding that a person above the state pension age, for example, but still in employment, could equally make the same argument.

Having considered all aspects of the complaint, I did not uphold it. The complainants said that they had a widebeam boat and that it was difficult to find permanent moorings, but I could not regard that as a reason for the Trust to disapply its continuous cruising guidance.

Case No 932 – complaint about unauthorised residential use of moorings at a marina

Mrs C lives in a residential property overlooking a marina, which is owned by the Trust but is leased to a third party. The lease includes various covenants, but the key one in this case is the one which states that no boat is to be used or intended to be used as a permanent residence. Mrs C, and several of her neighbours in other residential properties, complained to the Trust about unauthorised residential use at the marina, and the failure of the Trust to impose the marina’s mooring regulations. Her view was that the Trust had been negligent in its responsibilities towards the residents. She said she understood that the lease contained no clauses which safeguarded the interests or quality of life of the residents. Although she had not seen a copy of the lease, her view was that the Trust was either unwilling or unable to enforce it because it was inadequately worded and not appropriate to the situation which had developed.

The situation was complicated by the fact that relationships between the residents and the marina operator had broken down, and it was clear that nothing could be achieved by trying to mediate between the residents and the marina operator.

I visited the marina and the complainant, and also corresponded with the Local Planning Authority (LPA) and the Trust. The marina operator told me that very few boats had been there for more than a year, and that no boat was used for residential purposes, and the Trust said it did not know whether there was residential use and that it was up to the LPA to decide whether there was.

The Trust argued that there was no clear definition of residential use, such as for how long somebody is living on a boat in a marina. I would accept that even if a person lived on his/her boat, it did not mean they would be regarded as using the marina for residential purpose if, for example, they were spending only a few days there, but there are other tests of residency.

The Trust said it was not a straightforward matter to determine whether boats were used as a permanent residence, and that ultimately it was a matter for the LPA to investigate whether a breach of planning control had taken place.

While there may be questions at the margins about whether a boat is being used for residential purposes, my view was that such was the weight of evidence that people were indeed living on their boats (for example they had been there for over a year and were on the electoral roll), that I found it entirely persuasive. In other words, some people were clearly using their boats for long-term residential purposes. I also noted that the marina operator, while stating that there was no residential use, was at the same time in the process of submitting an application to the LPA for residential use of the marina.

The Trust said that if there was an alleged breach of the lease it would be a decision for it to make as to whether and how to enforce a particular term. Whether the covenant could be enforced by a court might be a subject for legal opinion. As a matter of policy the Trust did not propose to take any action in this case, explaining that it was a matter for the LPA to determine whether there was any residential use. Because it was a policy matter as to whether to enforce the covenant, I could not require it to do so. It seemed to me that if the LPA did grant planning permission for residential use, then whether the lease prohibited it was no longer a relevant issue. The wording would either have to be changed, or could effectively be disregarded.

In summary, in respect of Mrs C’s point that there was residential use of the marina, I upheld the complaint. However, I could not compel the Trust to investigate any possible breaches of the lease or to take any remedial action. In respect of Mrs C’s point that the Trust should enforce the marina’s mooring regulations, I could not require it to do so, as the enforcement of the regulations was a matter for the marina operator.

On a more general matter of the Trust’s handling of the situation, and the complaints from Mrs C and her fellow residents, it seemed to me that the Trust could have been far more helpful, much earlier.

Case No 953 – complaint about problems with the licensing of a boat

About five years ago Mr B, a liveaboard boater, removed his boat from the Trust’s waterways after it had issued a notice under section 8 of the British Waterways Act 1983 to do so because he had not renewed his licence. At that point the Trust had not obtained a Court Order, but because the process was so far advanced it decided to do so. The Order included a requirement for Mr B to pay the Trust’s costs.

Some time later, Mr B wished to bring his boat back onto Trust waters. He had first attempted to purchase a licence in 2014, but had been told in an email from an Enforcement Officer that the Trust, having gone through a lengthy process to get a Court Order for the removal of the boat, considered that it was not appropriate to issue him with another licence. The Trust had a week earlier told Mr B that the Court Order remained valid and enforceable, and that he must under no circumstances allow his boat to come onto the Trust’s waters without its prior written consent.

He tried again in early 2016 and was issued with a licence, but the Trust cancelled it a short time later, explaining that it had been incorrectly issued in the first place because of an administrative error. It was not until later in the year that he was able to purchase a full licence and return to Trust waters. Mr B argued that under section 17(4) of the British Waterways Act 1995 there are only three ways in which the Trust can revoke a licence, which are either that the boat does not comply with the applicable standards, that an insurance policy is not in force, or that it does not comply with Section 17(3)(c) of the Act (that it must have a home mooring or be used “bona fide for navigation”). Even then, he pointed out, the Trust had to give at least 28 days’ notice.

The Trust explained that Mr B was one a very small number of people who were issued with a licence in error, soon after the implementation of the web-based licensing system. It said that a block had been placed on the account to give it the opportunity to consider the application before a licence could be issued. It thought the error (which had since been resolved) had occurred because Mr B had a duplicate account. It also said that it had more than once provided him with a full explanation.

The Trust also said that it understood that the boat was not in a safe condition. It explained that in certain cases it takes the view that if, by using the licence, it would immediately lead to a situation where the terms of the licence will, or are likely to be, breached it may refuse to issue a licence.

Mr B argued that if the Trust had failed to check the details of his licence application it did not mean that it could revoke it without giving the statutory 28 days’ notice. The 1995 Act does allow the Trust to issue a notice to remedy certain matters, but I could not assume that this meant it may not cancel a contract for any other reason, such as to correct an administrative error. The reason the licence was cancelled was not to give Mr B the opportunity to remedy one of the three statutory conditions, so it was arguable that this subsection was not relevant. It did not seem to me that the 1995 Act compelled the Trust to give not less than 28 days’ notice in any circumstances, or that it prevented the Trust from cancelling a licence in such circumstances as occurred.

I said it was possible that a court might reach a different conclusion, and decide that there were no circumstances in which the Trust may cancel a licence, once issued, other than those set out in section 17(4) of the BW Act 1995.

This was a difficult case which was complicated by previous events, in particular the Court Order following the section 8 notice, and a dispute about whether the boat was safe to navigate. It seemed to me that without those issues, the problems may not have arisen in the first place, but I still had to decide whether there had been any maladministration by the Trust in the way that it had dealt with the matter.

A key point was that Mr B said that in 2016 he had never been provided with an explanation of why his licence application was not valid, but the Trust provided me with a copy of an email to him in May 2016 which provided a detailed explanation, so I could not conclude that he had “never” been told.

As to why Mr B did not obtain a licence in 2014, I was persuaded that the Trust had made attempts to engage with him, such as via face to face meetings, and I could see no clear reason why a resolution could not have been reached at the time. Later on, the Trust offered assistance from its Welfare Officer, but Mr B did not accept it.

I could see that there were a few times when the case could have taken a different direction, and while the Trust accepted that its communications at times could have been better, I did not reach the conclusion that they had closed the door on further discussion.

As an Ombudsman, I consider complaints on the basis of what is in my view fair and reasonable. I make my decisions on the basis of the balance of probabilities, in other words what is the most likely explanation for what has happened. In this case I was faced with a choice between on the one hand accepting Mr B’s arguments, which were essentially that the Trust had acted deceitfully and deliberately with a view to keeping him off its waters, or on the other hand accepting that the Trust did (as it accepted) make technical errors, for which it had apologised, but explained that it had made attempts to resolve the situation.

I did not come to the conclusion that the Trust had acted deceitfully, unlawfully, or unreasonably, nor had it deliberately misled Mr B. It could sometimes have provided more careful explanations, but I was satisfied that its offers of discussions would have been likely, if accepted, to have prevented the situation from developing as it did, and I did not uphold the complaint.

Case No 956 – complaint about the issue of a restricted six month licence for a boat without a home mooring

Mr A was issued with a restricted six month licence on the basis that he had failed to comply with the continuous cruising guidelines. His view was that the Trust had arbitrarily and inappropriately increased the required cruising range from 20km to the current 15-20 miles. He said that despite having an agreement with the Trust that he would be able to maintain his previous cruising pattern, it had broken the agreement. He also said that his complaint had not been completed within the published timescales.

Some time ago, Mr A had sent to the Trust what he called an Estoppel Agreement, which stated that he would continue navigating as he had done unless the Trust provided certain information and clarification. He said that the Agreement would come into force by default if the Trust did not respond to it (which it didn’t). He added that the failure of the Trust to provide the information would mean that not only he, but other boaters, would be able to cruise in accordance with his assumptions about lawful navigation, that any further harassment would cease, and that the continuous cruising guidance would be amended.

The Estoppel Agreement was a unilateral action by Mr A. I did not consider whether it was enforceable, but noted that even if it could be enforced it was unlikely that it could apply to other boaters. I said that if he did wish to try to enforce the terms of the agreement he could ask a court to adjudicate on the matter. As an Ombudsman, I had to have regard to what was fair and reasonable, and I did not regard the document as committing the Trust to accept his terms.

It seemed to me that Mr A was familiar with the current guidance, even if he disagreed with it. His point was not that the Trust had failed to apply its current guidance correctly, rather that it was to some extent arbitrary and that the Trust had failed to apply it according to the terms of the Agreement. I noted, however, that by purchasing a licence for his boat each year Mr A had agreed to the Trust’s prevailing terms and conditions, which included the guidance for BWHM.

The Trust had made Mr A aware that he had not complied with the guidance, and had issued him with a restricted licence. The guidance is the Trust’s interpretation of the law. I cannot influence its policy, nor could I require it to take a different approach in this case.

On the Trust’s complaints process, the Trust had informed him that there would be a delay in issuing the second level letter but it did keep Mr A informed and he accepted the fact, noting that he would rather the matter was carefully addressed than rushed. The Trust’s complaints process does include the possibility of delays, and while there was one, it was slight and I did not regard it as unacceptable.

I did not uphold the complaint. I could see no reason why Mr A should not have to comply with the current guidance, nor why the Trust should not continue with any appropriate enforcement action if he did not comply.

This is the complete list for the year

Case No 848 – complaint about problems arising from boats mooring on a section of the Regent’s Canal (see also Case No 837 below)

Ms R’s complaint raised issues which were similar to those of Ms K in Case No 837, and to a large extent I conducted the investigations in parallel. This summary should be read in conjunction with the summary of that case.

Ms R lives in a house overlooking the Regent’s Canal. She complained about nuisance from smoke and noise from boats at a visitor mooring, that the CRT’s management regime at the mooring was insufficiently stringent to deal with problems at the site, and that the CRT did not adequately enforce the management regime it had in place. I also received complaints from a number of her neighbours.

As with Case No 837, the key problems were that the towpath is narrow, and there are high buildings on either side of the canal, so that pollutants are trapped, are slow to disperse, and drift into buildings.

During the course of my investigations, during which I attended two open meetings organised by the CRT, a number of suggestions for improving the situation were out to me, and I have referred to these in my summary of Case No 837. In that summary I referred to plans to install electricity posts. Since then the plans have advanced, and it seemed that posts would be installed at the location in this case, although there was still discussion about what the mooring regime would be. My view was that the plans would address most of Ms R’s concerns.

The CRT said that there was also clear evidence that boaters themselves were taking note of the London mooring situation, and that they were starting to accept that they must change their behaviour, or face more stringent cruising and mooring requirements.

Ms R hoped that that in the longer term the CRT would be able to curtail boat numbers, but I said that this was a policy issue about which I could do nothing and was therefore outside the scope of the complaint. I noted that the CRT itself was unable with current legislation to curtail absolute boat numbers, because it could not refuse legitimate requests for boat licences. I said that even if it could limit the number of boats on London’s waterways it would be difficult to develop a fair policy and would almost certainly be very hard to enforce.

In conclusion, I was satisfied that the CRT was going in the right direction, and that the proposals would go a long way to addressing the residents’ complaints. I noted that the fine details of the plans were policy matters, which I could not influence. I added that further information would become available in due course, and that I would expect the CRT to provide updates to residents once plans were finalised.

My view was that Ms R did have a genuine grievance. The CRT accepted that the situation did need to be improved, and although it had taken a long time and involved the time and effort of a large number of people, a plan had emerged which at the time I opened the investigation had seemed to be a very unlikely outcome.

Case No 908 – complaint that the CRT had mis-sold a mooring which had been advertised as being for residential use only

Ms Q and her partner, Mr R, jointly own a boat which they use for commercial purposes. They wanted a city centre mooring and, when one became available for sale by auction, Ms Q made a successful bid. The auction details stated that the mooring was for residential use, but Mr R said that before the bid was made he contacted the CRT, who told him it was not necessarily for residential use. Although the boat licence was in Mr R’s name only, it was Ms Q who applied for the mooring. Mr R explained that he did not bid himself because he had been a victim of discrimination by the CRT on several fronts and feared the mooring opportunity would be denied to him. When the CRT discovered that the boat was not a residential boat it gave notice of eviction from the mooring.

Ms Q complained that the CRT had mis-sold her a mooring, which she had bid for on the understanding that it was not strictly for residential use, but that it had then revoked the agreement. She argued that the CRT has applied a system of discrimination/favouritism in considering an attempt to develop of her business.

The CRT found no evidence that Mr R had been told that the mooring was not strictly for residential use. It also pointed out that the auction terms and conditions stated that the application must be made by the lawful owner/keeper of the boat, being the person in whose name the licence was issued.

Even if a mooring is not strictly for residential use, it does not mean that it can be used for a commercial boat; it could be used as a leisure mooring. I considered that the possible use of the mooring was so important that if Mr R had wanted to rely on what he had been told in a phone call he should have obtained confirmation, and also specifically asked whether the mooring could be used for a commercial boat, not simply whether it was strictly for residential use.

Whether or not Mr R had been the target of any discrimination was not part of the complaint and I could not consider it. Ms Q, in making the application in her name, had not adhered to the auction terms and conditions. I can consider complaints about maladministration, in other words where the CRT has not followed its own rules and procedures. To uphold the complaint I would have to have decided that the CRT should set aside a fundamental condition of its mooring application, and also allow a commercial boat to use a mooring which had been advertised as being for residential use.

Although I did not uphold the main part of the complaint, Ms Q pointed out that there had been a considerable delay in the CRT issuing its second level response. The delay had arisen from a breakdown in the complaints process. I concluded that this was not acceptable, and decided that the CRT must make a goodwill award (should Ms Q decide to accept it) of £100 to reflect the distress and inconvenience.

Case No 933 – complaint about the issue of a restricted six month licence for a boat without a home mooring, on which school-age children live

Ms O and Mr P live on a boat with their school-age children. They do not have a home mooring and are therefore required to comply with the guidance for boaters without a home mooring.  After their previous licence expired at the end of August 2016 they were issued with a restricted six month licence on the basis that they had not complied with the guidance. In their view they had complied, noting that a journey to a more distant location had not been included in the sightings, but even when it took into account this journey the CRT’s view was that they had still failed to comply. They wanted the CRT to issue them with a 12 month licence, and also to apologise for harassing them.

Their previous – 12 month – licence had expired on 31 August 2016. They said that the assessment period, which was only the first 10 months of the licence, excluded the main navigation during the school holidays. However, the CRT explained that in the majority of cases the pattern of movement had been sufficiently established by this point for the CRT to determine whether or not it had a concern. It felt that it was unlikely that additional cruising in the final weeks would change the situation, but it did review the twelve months from July 2015 to July 2016. It explained that while there was a greater range, it was for a relatively short period and the majority of cruising remained within a range of 14 km, and still meant that there was a concern about the overall movement pattern across the year.

The complainants questioned the clarity of the guidance, but the CRT said that its published guidance, together with its correspondence with the complainants, could have left them in no doubt that the range of movement was not the only requirement.

I had a concern about the CRT’s high level guidance, which could be interpreted as a flowchart in which, as long as the basic requirement of a range of travel of 15-20 miles was met, no other tests would be applied. The CRT disagreed, but did say that it would amend the guidance to make it clear that this was not the sole test.

Although the CRT accepted that in reference to the “overall pattern of movement” the word “pattern” did not appear in the statute or the guidance, it noted that the guidance did refer to a “range of movement … over the period of the licence”.

Even taking into account any ambiguities in the guidance, I concluded that the CRT had acted reasonably in issuing a six month restricted licence, and I did not uphold the complaint. However, I did have a concern that the complainants may then have some difficulty in complying with the guidance, given that the six month period would be over the winter months and with few school holidays. The CRT said that it had already recognised the potential difficulty and would base its assessment on the previous 12 months, which it said was now its general approach.

The complainants said that their movements were constrained by their children’s schooling, adding that they were concerned that they would be able to comply with the guidance only if they made greater movements during term-time. They also referred to the possibility of reasonable adjustments being made in light of human rights obligations and their children’s right to an education. While accepting the complainants’ point about the need for the children’s education, the CRT said that it was crucial that they comply with the guidance, noting that some families were doing this already, but it was happy to discuss with each family how it could adopt a pattern of movement that complied with the legal requirement. It also said that there were responsibilities on schools and local authorities to help transport those children with long journeys whom they had accepted into their school.

The CRT also said [in February 2016] that in the coming weeks it intended to publish illustrative cruising patterns for boaters with school-aged children, based on actual patterns of other boaters in this position. In this particular case, pending this publication, it intended to offer a further six month restricted licence, and that if the complainants were able to comply with this guidance (e.g. by moving further over Easter, half-terms and the summer breaks) they should qualify for a further six month licence (on the assumption that they could not establish a compliant pattern over 12 months to qualify for a full 12-month licence based on their pattern of movement over the winter of 2016-17). If they continued to comply over the next winter [2017-18], they should then qualify for a 12 month licence in March 2018.

The complainants also said that the CRT’s complaints process had failed, because it had not responded to the second level complaint within the prescribed 15 days. The CRT pointed out that if necessary it could extend the response time. It had notified the complainants, within the 15 days, that it needed further time, and I did not uphold this element of the complaint.

I did say that I had found the CRT’s documents and guidance about the continuous cruising requirements to be difficult to follow. I made the same point in Case No 931, which is summarised below.

Case No 919 - complaint by a boater with a disability about shortfalls in service by the CRT in dealing with a request for reasonable adjustments

Mr N complained that the CRT had failed to agree, within a reasonable timescale and in a reasonable manner, to his request for reasonable adjustments under the Equality Act 2010, and that as a result he suffered stress and inconvenience in addition to the time it took him to obtain the adjustments.

Mr N is a boater without a home mooring and is therefore required to comply with the continuous cruising guidance. He had an injury in 2013, which limited his movements, and he was registered disabled in 2015. He said that he had tried to get reasonable adjustments, under the Equality Act 2010, to allow him to continue to live aboard his boat but with more limited movements. He explained that he had had great difficulties in persuading the CRT to make such adjustments (although they were eventually agreed), and that he had resorted to using the services of a community law organisation. Based on the advice he received, he decided to instigate court action, but then withdrew his claim.

Under my rules I can refuse to consider a complaint if the matter has already been dealt with by a court or other dispute resolution body. As Mr N had discontinued his court action, I decided that I could accept the complaint, and the CRT did not object.

The CRT said that in its defence of the prospective court action it specifically denied any harassment or victimisation, believing that it had acted properly, and did not consider that it would be just or equitable for the court to award him any compensation. It said that Mr N withdrew his claim after the CRT had filed its defence, and that in light of his decision to withdraw it did not see how Mr N could ask me to require the Trust to give him the compensation that he had been pursuing via his court claim.

I said that a court process could be daunting, even leaving aside the risk of having to pay the other party’s costs. One of the roles of an ombudsman is to effectively “level the playing field” between the parties, in other words to give them both an equal voice. I noted the CRT’s point that the court could have awarded compensation even absent a finding of discrimination or harassment, and it is true to say that Mr N did decide to withdraw his claim. However, I said that it was still open to me to consider whether the CRT had met its own standards, and it did accept that it had taken a long time to reach an agreement and would like to have done so more quickly.

The question of whether there had been discrimination or harassment under the Equality Act 2010 was not one I could have considered, and therefore I could not have made a financial award about such matters. I could, however, consider whether there had been shortfalls in service in the way that the CRT had dealt with Mr N’s request for reasonable adjustments. The CRT accepted that it had taken a long time to get a full understanding of Mr N’s circumstances, and was sorry that he had had to spend his time and effort in pursuing his request. It said that it had acted in the genuine belief that adjustments had already been agreed, and said that it had not been the CRT’s intention to offend or harass him.

I accepted that the CRT may have acted in the genuine belief that it had dealt properly with Mr N’s request, but having reviewed the correspondence and the many and protracted steps he had taken to get the adjustments made, I was persuaded that the CRT could have acted more promptly and helpfully. I decided that the CRT should make a goodwill award to Mr N of £300, which it agreed to, noting that it would be on a “without prejudice basis”, a point which I was content to accept. Mr N accepted the award.

Mr N considered that he had not been well-advised by the third sector organisations he had used, and I did not disagree. However, this left him a position which could have left him exposed to court costs. It is not for me to advise complainants to use the Waterways Ombudsman Scheme, but if somebody does embark on a court process it could mean that they are later unable to use the Scheme. I cannot, as I have noted above, make decisions on what are strictly legal matters, but most complaints, even if they do involve such issues, include wider ones. Should any future complainants have questions about potential complaints, they are free to ask me for information about the ombudsman process, on a confidential basis and without being obliged to make any commitments, to help them evaluate their options.

Case No 939 – complaint about the way in which the CRT had granted an angling licence to a club for the sole fishing rights to a stretch of canal

Mr M, a keen angler, said that the licence had been granted at the request of the angling club, which he described as an elitist single-species club, at preferential rates, which meant that there was no pressure on it to actively manage the fishery. He said that the club was interested only in one location, a marina, and that this had led to a situation of neglect elsewhere, with a lack of adequate bailiffing. He also noted that there was a lot of ill-feeling among other local anglers who were very unhappy about the situation.

Mr M questioned the way the licence was granted, which he described as an agreement between friends. His view was that the CRT should have engaged with or approached other organisations but that it had not done so. He said that the canal was a public asset, and that the CRT was foregoing revenue by charging the club so little. He also questioned the CRT’s policy that at the expiry of the licence the renewal would be offered to the incumbent club on a first refusal basis. Although he accepted that with only a year or so to run, there may be nothing that I could do about the current situation, he wanted me to examine the licence renewal process.

The CRT explained to me that that it was its policy (and before that British Waterways’ policy) to offer existing licensees first refusal of a new agreement on expiry of their current one. It said that the policy had been instigated in or around 1986 when the standard angling agreement document first came into being (agreed jointly by the National Federation of Anglers, the then governing body of freshwater coarse fishing, and BW, through the auspices of the National Fisheries Liaison Committee). It said that this was a common approach to fishing rights, adding that the rights were not sufficiently commercially competitive, noting that it brought benefit to the CRT, and it could not justify a review of the policy. It also said that the angling club volunteering contribution may have a greater value to the CRT than the actual angling income, adding that clubs rented its fisheries so that local resources were available and were looked after by the community for the community.

I accepted that Mr M might contest this argument in respect of this particular fishery, but I said that I could not question the CRT’s policies. In its response to Mr M’s complaint the CRT did say that it would review the situation ahead of the expiry of the licence in 2018. I noted that the CRT may regard the summary of the situation in my final report as being helpful in its review, and although I could not dictate the review process I said that I would expect the CRT to take into account the concerns raised by Mr M, and any other comments it receives.

Case No 931 – complaint about the issue of a restricted six month licence for a boat without a home mooring

Mr L owns, but does not live on, a boat without a home mooring. The CRT issued a six month restricted licence on the basis that his cruising pattern had not complied with the guidance for boaters without a home mooring. He said that he had been cruising since 1997 without any problems, and had not changed his cruising pattern. He said that he was not aware of any distance stipulation, that the guidance was not clear, and that he had not been informed that it had been updated.

He wanted a detailed explanation of why, in the CRT’s opinion, the boat was not meeting the terms of the licence. He also wanted a definitive response as to whether his proposed cruising over the next six months would meet the licence terms. He also said he was at a loss to understand the requirement to “greatly exceed the minimum distance” or indeed what the terms “relatively small area” and “short distances” meant in the context of boat navigation.

The CRT said that as the boat had travelled just under 13 miles it did not comply with the guidance, which specified a range of not less than 15-20 miles. It explained that the decision about whether the cruising distance met the requirements of the guidance was based on the first 10 months of the licence period.

Mr L said that his understanding of the meaning of “range” was the total distance travelled, nit the distance between the end-points, noting that this would be consistent with the use of the word when considering, for example, how far a boat could travel on a tank of fuel. He said that the CRT had written to him on 11 March 2016 to say that his boat had not moved enough to satisfy the terms of the licence. He replied on 15 March saying that he was not aware of any distance stipulation within with the British Waterways Act 1995, but he got no reply. Although I said that it would have been helpful had it replied, I noted that while Mr L had made some statements he had not phrased them as a question.

The CRT’s sightings records indicated that during the assessment period of 9.5 months Mr L’s boat had moved a total end-to-end distance of just over 12 miles, and a total distance of just over 23 miles. Mr L pointed out this did not include his main navigation of the season, which would have been during the last two months of the licence period (July and August).

My view was that the reference in the guidance to a range of movement related to the distance between end-points, rather than the total distance travelled, because otherwise it would be possible to achieve the required distance simply by “shuttling” between two points. I said I could understand why the CRT chose not to specify a precise distance to be travelled because that could lead to boaters meeting that requirement and no more. I noted that while some boaters did not for various reasons meet the requirements of the guidance it was not clear that they did not understand what the guidance meant. I was, however, concerned that the CRT said that a clear demonstration of Mr L’s intent to comply would be to “greatly exceed” the minimum distance to be travelled, because that had no clear meaning.

In terms of the CRT’s assessment period, it said that it reviewed movements over a 10 month period because the last two months covered the licence renewal process. It said that it had amended its process to consider 12 months of sightings, but this could be done only where the current licence was a renewal and not a first licence. Even if, during the last two months of the licence period, Mr L had exceeded the minimum distance, it would have been on a single trip, and the combination of distance travelled and cruising pattern would not have met the requirements in the guidance.

The CRT’s guidance is its interpretation of the law, and is a matter of policy. All I could do was decide whether it had applied its guidance appropriately, and in this case I have concluded that it had, and I did not uphold the complaint.

Given that the six month restricted licence period was already half way through, I queried with the CRT how it would assess compliance. It said that it would look back on the previous 12 months, which include the last two months of the 12 month licence. It also said that in any case where a six month licence had been issued the final decision would not be taken until the end of the licence period, which would allow more time to meet the requirements.

In conducting this investigation, as well as others about continuous cruising, I have found the guidance difficult to follow and spread across too many pages on the CRT’s website. While I could not require the CRT to reorganise its guidance, I did recommend that it consider the organisation and accessibility of the material from an outsider’s point of view, and assess whether anything could be done to make it easier to find and to follow.

Case No 837 – complaint about problems arising from boats mooring on a section of the Regent’s Canal (see also Case No 848 above)

Ms K lives in a flat overlooking the Regent’s Canal near St Pancras. She complained about nuisance from smoke emitted by boats, noise, which was mainly from engines or generators running sometimes at unsocial hours, and bad behaviour in the form of threatening or upsetting interactions with some of the boaters concerned. She said that these problems also affected her neighbours.

In its response to Ms K’s complaint, the CRT said that it would decide on how best to manage the local moorings as part of a wider consultation about central London mooring management. It expected the consultation to continue through the summer of 2015, with decisions being made in time for the next season’s winter moorings.

Although the terms of the complaint seemed to be relatively straightforward, they masked complications and issues which are at core of the CRT’s London mooring strategy, and it was not simply a matter of deciding whether there had been maladministration or unfair treatment by the CRT.

What was clear was that the existing situation was not satisfactory, a point which the CRT accepted, but that the solution was far from clear. Short of the CRT prohibiting mooring in the area – which nobody felt was an appropriate solution – there were no obvious quick fixes, and few obvious long-term fixes.

I said that what I could do was limited. I do not have powers to dictate CRT policy, but given the extreme level of dissatisfaction on the part of Ms K and her neighbours, and their frustration with the situation, I felt that the most effective contribution I could make was to try to bring the parties together and also to see whether there was anything I could do to promote ideas or activities which would improve or resolve the situation. In other words I did not treat the matter as a conventional complaint, but tried to engage in the process by which the problems would be addressed in the longer term.

During the past few years, there has been an influx of boats onto the London waterways, caused at least to some extent by a lack of available housing, and particularly by a lack of affordable housing. Some people see a boat as an affordable way of living in London, but there are many more boats in London than permanent moorings. However, because people can license their boats without the need to have a home mooring and continuously cruise (thus saving mooring charges), they moor at visitor moorings.

Visitor and short-term moorings do not, in the main, have many facilities. In particular, they do not have electricity posts, which means that once boat are moored and the batteries are exhausted, the sources of power and heating are the engines, diesel generators, and stoves which burn a range of fuels. Unless boaters are very careful in their use of fuels, these units may emit unpleasant and/or noxious smoke and exhaust fumes. The problems are exacerbated at this particular location for three reasons; first, there are high properties on both sides of the canal, which means the fumes are contained (the canyon effect); second, the towpath is narrow; and third, except for what is called “dark smoke” the Clean Air Act 1993 does not apply to boats. Pollution problems are greatly increased in winter, especially when there is a combination of very low temperatures and still air, which means not only that there are more emissions, but that any smoke is not dispersed quickly.

During the course of my investigation I received a considerable volume of evidence and argument. I had many meetings with various groups and individuals, including residents, CRT staff, staff and Councillors at Islington Council, and caretaker boaters. I attended two open meetings convened by the CRT to raise and discuss mooring issues, and I visited the location on a number of occasions.

Although the CRT does provide signage at the location which explains the rules, for example the restrictions on using generators between 8pm and 8am, they are not always observed. In matters of statutory nuisance and clean air, the Local Authority (Islington) has a responsibility for enforcement under the section 79 of the Environmental Protection Act 1990, but appointed staff members must witness it themselves and, as an Islington representative said at one meeting I attended, it was often the case that by the time they arrived, even if only after a short interval, the problem had ceased.

In discussion with various people, a number of suggestions for improving the situation were put to me. Some, such as lobbying the lobbying Government to change the Clean Air Act, or rationing moorings via licence restrictions, may seem reasonable requests but which for the purpose of this investigation I had to regard as aspirational but not practical. Others, such as imposing restrictions on boats with noisy engines, or restrictions on which fuels could be used at a mooring, would be difficult to enforce and may be discriminatory.

Improved signage may be helpful but there is no guarantee that boaters would adhere to the guidance. The most practical, and obvious, is greater enforcement, but it would be a significant drain on the CRT’s resources. Others included the provision of bookable moorings, and other mooring changes, but these could be considered as part of the London mooring plan, which is a policy issue which I could contribute to but about which I could not make any requirements. Boater education was considered to be a key element of any solution, but given the continual flux of boaters passing through, and new boaters coming onto the water, it was not something that could be achieved quickly.

There was one proposal which would be likely to make the single biggest difference, which was to install electricity posts, but I was informed that the cost would be prohibitive, and would almost certainly exceed any award I could make, even if could require the CRT to install them.

During my investigation the CRT was developing its London mooring strategy, which would address not just this location but the whole of the London area. Later in my investigation I was informed that plans had been put forward for the installation of electricity posts, made possible by the availability of external funds to contribute to the costs. The locations of the posts would be determined in consultation with Islington Council, but nothing would be finalised until later.

It was not up to me to propose solutions to the problem but to gauge whether the Trust had acted properly and fairly. I felt that if my involvement had achieved anything it may have been in focussing minds on possible solutions, but I stressed that mine had not been the only voice. It was evident that the problem was probably far more difficult to resolve than anybody had imagined, and when I closed my investigation there was still no finalised plan, but there were potential solutions which had not existed or been considered at the outset. Even if the electricity post proposals were still being developed, the CRT had taken many steps to address the problems, and it had set out a number of specific steps it was taking to deal with the problems during the winter of 2016-17.

In conclusion, I said that the CRT had accepted that the situation needed to be improved, but that it was very complex and there was no single cause or solution; rather, steps to be taken to improve the situation were dependent on the input of several stakeholders, including Islington Council. I thought that the CRT had taken the matter seriously and was intent on improving it for the benefit of all parties. I did not make a formal finding nor did I propose any remedies, because the CRT was developing a mooring strategy which would include this part of the canal. I said that if my involvement had to any extent helped to clarify the problems and focus minds, it would have been useful.

Case No 934 – complaint that the CRT is incorrectly requiring a boat to be licensed while moored at a pontoon on the River Trent over riparian land and not used for cruising

Mr J has two boats on the mooring. His view is that if the boats remain at the mooring and he does not cruise in them he should not have to pay for a licence. He argued that the boats were moored at the end of a pontoon, over 150 metres from the exit to the River Trent, on a private mooring, over riparian land which was not owned by the CRT. He said that he had previously moored over riparian land elsewhere but had not been required to purchase a licence.

Mr J cited several legislative instruments, and made a number of arguments as to why interpretation of them led to the conclusion that he did not need a licence while not cruising. For example, he said that while the boats were moored they were not in the “main navigable channel”, that he was not “using” the boats or “navigating” on the river, that he was not using any CRT facilities or getting any benefit from the CRT, that the CRT did not own the bed of the river, and that the riparian owner provided all the facilities.

The CRT said that section 5 of the British Waterways Act 1971 states that a pleasure boat certificate was necessary to “keep, let for hire or use” a pleasure boat on a river waterway, that section 7 of the Act referred to a boat “to be used on a river waterway”, rather than “being used”. It said that even if a boat was not actually navigating, it could still charge for a licence while it was being kept for use. It also said that under section 43(3) of the Transport Act 1962 it could charge for the use of its facilities, which included dredging, managing vegetation, managing water levels etc.

The CRT’s argued that regardless of who owned the land under the river, it was the navigation authority and was entitled to charge where a boat was kept on its waterway. Mr J relied on an argument that if a boat was not actually moving it was not being used, but it was not clear to me that even if a boat was stationary it was not in some way being used. I also noted that the statement in section 5 of the British Waterways Act 1971 that a pleasure boat certificate was necessary to “keep” a boat on a river waterway could be regarded as indicating that a licence was necessary even if a boat was not moving.

Essentially, Mr J’s arguments were ones of semantics, and the meaning of words in the relevant legislation. I noted that the precise definitions of such words may be matters of legal interpretation. In respect of Mr J’s comments about other marinas where it was not necessary to purchase a CRT licence, in those cases I did establish that they were private marinas created over private land, outside the original river boundaries.

Mr J referred to a previous Waterways Ombudsman case, no. 516 (see page 31 of Annual Report 2010-11), in which similar arguments had been considered. In her summary of that case my predecessor noted the discrepancy between the arguments, but went on to say that if the correct interpretation of the law was not entirely clear, then she would not be able to resolve matters, as only the Courts could give definitive interpretations of the law. While I accepted that there were apparent contradictions, I could only echo the points made by my predecessor, that this was a matter about legal definitions which it would be for the Courts to decide. I found no evidence of maladministration and did not uphold the complaint.

Case No 936 – complaint about the CRT’s refusal, as the owner of the fishing rights at a lake, to increase the number of fishing places

The lake, in the Midlands, is owned by the CRT. The CRT’s predecessor, British Waterways, bought the fishing rights over 25 years ago. Some years after that, there was an undocumented agreement that the number of fishing places would be restricted to six. The complainant, Mr I, wanted the CRT to increase the number of fishing places, but there was strong opposition from members of the local community group, and the CRT had refused to increase the number.

The CRT did consider Mr I’s request, but said that there had been insufficient support for the proposal. Mr I made a number of arguments why the number of fishing places should be increased. However, my view was that the fundamental issue was not the weight of argument of the interests of one stakeholder group, but whether in the way it had managed the situation and made the rules about the management of the lake the CRT had demonstrated maladministration or unfairness. The CRT’s decision not to increase the number of fishing places was a matter of policy, having taken into account the views of the various parties. The CRT could not reasonably ignore the interests of the various stakeholder groups.

I added that if the CRT were to allocate extra fishing places, without there being general support for doing so, it was possible that those objecting could make their case to the CRT, and the matter may in due course come to me. I said that I had to be even-handed in making my decisions, and while I fully understand Mr I’s undoubted passion about the subject, I could not uphold his complaint.

Case No 880 – complaint about damage to a boat arising from a failure of the CRT to manage water levels on the Kennet & Avon Canal

This should be read in conjunction with the summary below for case number 914.

Mr H complained that his boat had suffered damage as a result of the CRT’s failure to maintain the Kennet & Avon Canal (K&A) in a suitable condition in accordance with section 105 of the Transport Act 1968.

Mr H is a boater without a home mooring. His boat has a V-shaped keel, with a draught deeper than that of narrowboats. He said that as a result of the K&A being less than specification depth his propeller had suffered damage from striking an underwater object, and that in order to repair the damage he would need to haul the boat out of the water, at significant expense. He argued that the CRT had failed to ensure that the canal was properly maintained and that this, combined with fluctuating water levels on a weekly cycle, meant that the canal depth was below the minimum specification.

Mr H presented a considerable volume of evidence to support his claim, including CRT (as well as its predecessor British Waterways) documentation about water depth. There is a considerable volume of legislation governing canals, their use, and the CRT’s obligations. While there is no legal minimum requirement for the depth of canals, there are requirements that the CRT maintain them for the use of certain types of boats. Mr H had argued that the draught of a particular commercial boat could be used as a yardstick for deciding the minimum depth of a canal, but noted that even if this were not the case, he ought to be able to rely on the CRT’s specifications.

As it is, the K&A is not designated as a commercial waterway, but a cruising waterway. There is some circularity in the law, which states that the CRT must maintain the K&A for use by cruising craft for which it was designed to be used when it was restored, but there is no specification for a cruising vessel. Indeed, while Mr H had argued that the depth on the re-opening of the K&A in 1990 must be deemed to be 1066 mm, I could find no definitive, published evidence that any particular depth had been specified at restoration. Mr H provided details of two sets of dimension data, dated February 2010 and August 2014. The latter document gives a smaller depth than the first (1.1m, compared to 1.24m), but even so it was still greater than the draught of Mr H’s boat. The CRT accepted that the data were incorrect, and even that the anomaly was identified in 2010 but was not corrected until 2014. The depth specification might have been a key factor, but even the lesser depth specification exceeded the draught of Mr H’s boat.

At the core of Mr H’s complaint was the issue of liability, and whether the CRT, in carrying out its duties, could have been regarded as negligent. Referring to sections 105 and 106 of the Transport Act 1968, about maintenance of the waterways, and enforcement of that duty, the CRT said that it could not be sued for damages for a breach of statutory duty. In short, even if the CRT had shown “a serious and persistent failure” to discharge its duty, as Mr G had alleged, it argued that this did not mean that it should be liable for any damage to a boat. Furthermore, the CRT argued that it could not be liable for vessels striking objects in the canal unless it was made aware of a specific obstruction and had failed to respond within a reasonable timeframe.

The issue of liability, in such a case, may pivot on points of law, and I said that I did not have the necessary legal knowledge or expertise to reach a definitive conclusion. My conclusion, on the basis of my understanding of the law and the situation, was that the CRT was not liable for the damage caused to Mr H’s boat. I added that it may not be the only conceivable conclusion, and that it was possible that a court or other dispute resolution body would reach a different conclusion.

I also considered the matter of boat insurance. All boats must be insured before the CRT will issue a licence, but the insurance needs only to be third party, not comprehensive. Mr G had third party insurance, and was thus not able to claim on his insurance for the damage. I noted that no amount of dredging of a canal could ensure that there would be no foreign objects in it, which could cause damage to a boat, especially one with a deep draught.

Case No 914 – complaint about losses following the sinking of a boat after it hit an underwater hazard

This should be read in conjunction with the summary above for case number 880.

Mr G was cruising on the Grand Union Canal. He moved towards the towpath to accommodate a boat coming the other way, and hit an underwater hazard which holed his boat. He managed to reach a nearby marina and get into a mooring before his boat sank.

He had fully comprehensive insurance, which reimbursed him the agreed value of his boat as it was written off. However, after comparing the insurance payout with his losses he concluded that he had lost around £3,000, and wanted the CRT to reimburse him the difference. He also wanted the CRT to reimburse him for the loss of personal effects on the boat which had been damaged beyond recovery.

Mr G sent me details of his insurance claim and payout, annotated with his own calculations. On close scrutiny I concluded that Mr G had not been comparing like with like, and although I understood how he had reached his figure of a £3,000 shortfall, I did not agree with his calculations. I was satisfied that his insurance company had paid out the agreed values for the items damaged in the accident, but he had also claimed for his trailer, which he said was damaged beyond repair in returning the boat by road to its home mooring. His insurance company noted that the trailer was not damaged in the accident, and in any case it did not necessarily agree with Mr G’s original valuation. Mr G’s insurance policy did cover personal effects, but he had not made a claim, explaining that the incident and its aftermath had been very stressful. I concluded that in not making a claim, the CRT could not in any circumstances be expected to reimburse him for any such losses.

I did consider the question of whether the CRT was liable for damage to Mr G’s boat. The CRT denied liability for Mr G’s losses on the basis that it had employed reasonable measures to provide a hazard-free waterway. It argued that under section 105 of the Transport Act 1968 it was not liable for the damage. In essence it said that it could only deal with hazards that it knew about, and could not be liable for ones it had not been made aware of, regardless of how long they may have been there.

I could not reasonably reach the conclusion that the CRT was liable for the damage and therefore that it should reimburse Mr G for any losses. I said that the issue of liability was a matter best dealt with by the courts, given that it was likely to pivot on legal arguments. In Mr G’s case the existence of the underwater hazard had not been reported before his boat struck it, and the CRT was not aware of it. For Mr G to be successful in a claim against the Trust he may have to prove negligence, and it is not clear how he would achieve that if the CRT was unaware of the existence of the object.

Mr G also complained about the way that the CRT dealt with the marking of the hazard.  The CRT did accept that it could have communicated with him more effectively and in a more timely manner in respect of what it had done after it had been notified about the potential obstruction, and apologised to him. I considered that in view of the circumstances the CRT should make a modest goodwill payment of £75 to Mr G to reflect shortfalls in service, which he accepted. He did not accept my conclusions on the main issue, of the damage to his boat, and was free to pursue his complaint by other means.

Case No 859 – complaint about insufficient water draught at a mooring

Ms F complained that there was insufficient water draught at her mooring in London to accept her new boat, and that she had not received timely responses from the CRT about the design of the boat, which she wanted to be as environmentally sustainable as possible.

Ms F already had the mooring when she commissioned a new boat build, which she described as an eco-boat. She made enquiries with the CRT about a number of matters, including reprofiling of the mooring to accept the boat, using solar panels which would feed excess electricity back into the grid, and a water source heat pump. The CRT was slow in responding to the enquiries, and there were delays early on in the process. Ms F complained to the CRT, which accepted that there had been shortfalls in the way it had dealt with the enquiries, for which it made a goodwill offer of £500, but which Ms F did not accept.

In view of the CRT’s delays, Ms F wanted it to reimburse her costs (including boat storage costs, property rental costs and Council Tax while she was waiting to move her boat onto the mooring), the cost of undertaking independent surveys along the canal to determine the launch and route to her mooring, and a token payment for inconvenience and anxiety.

I accepted that the CRT had not dealt effectively with her enquiries about her boat, but it was not clear to me that this had been the only cause of the delays in the boat build. She said that the design and build of her eco-boat had been new territory for her, her boat-builder, and the CRT. There were also considerable delays on her part. For example, she had waited until the very brink of what she though was the deadline to bring the matter to me after she had completed the CRT’s internal complaints process. Her explanation was that she had other commitments. Near the end of my investigation, when I asked whether she had asked the CRT to reprofile her mooring so she could move her boat onto it, she said that she was waiting for me to complete the investigation. However, I made it clear that the fitness of the mooring to accommodate the boat was a matter between her and the CRT, and that my conclusions would have no effect on this or her timetable to complete and move the boat. At the time I completed my investigation it had been nearly four years since the boat build started, but I concluded that most of any delays had been attributable to Ms F, not the CRT.

She had provided me with invoices totalling some £46,000 for her costs. Although she had told the CRT that she was paying for storage costs, she provided no further details, particularly of their scale. I would in any case have expected her to mitigate and minimise such costs. These costs could be regarded as consequential damages, in other words beyond any contract between her and the CRT. My view was that whether the costs could indeed be regarded as consequential damages may be more likely to pivot on legal issues, such as whether the CRT had actually failed to meet a contractual obligation and whether, even if so, it should be responsible for any such losses. I noted that these were matters which would be best dealt with by a court of law.

In respect of Ms F’s decision to commission, at a cost of some £1,200, an independent survey to establish the best route to her mooring, she said that she had not consulted the CRT about the route, nor had she needed to make any adjustments to the boat once the route had been established. I concluded that it had been her decision to commission the survey and that there was no basis for expecting the CRT to pay.

I did not uphold her complaint. I was satisfied that the CRT should maintain its offer of a goodwill award of £500, which I increased to £600 to reflect further customer service shortfalls in dealing with Ms F’s second level complaint. Ms F did not accept my conclusions, deciding to pursue the complaint by other means, and so the CRT was not required to make the payment of £600.

Footnote: First, it is worth noting that because the CRT is not a regulated electricity supplier it could not be required to allow boaters to return electricity to the grid via electricity posts. It added that the posts were not designed for such a purpose, and that there was a safety risk in doing so. Second, the type of heat pump which Ms F had initially wanted to install was a water source heat pump. The CRT would not allow this because of the potentially damaging environmental consequences of a coolant leak.

Case No 920 – complaint about continuous cruising licence restrictions and other issues

Mr E complained about the six month licence restriction imposed on him by the CRT. He also complained that the CRT was failing to manage the water depth in the Kennet & Avon Canal (K&A) sufficient to allow his boat to navigate unimpeded. Finally, he complained that the CRT had failed to open and manage a series of complaints, starting with his initial complaint about his licence restriction.

The chain of events started when Mr E sent an email to a person in the CRT, in which he challenged the CRT’s decision to restrict his licence as his boat movements were not sufficient to comply with the continuous cruising guidance. In the email address the local name was in the wrong format and the domain name was incorrect (“canalandrivertrust.org.uk” rather than “canalrivertrust.org.uk”), but he did not receive an “undeliverable mail” response. If the domain name had been correct the email might have been received and redirected, but the CRT did not receive it. Mr E maintained that as he did not get an undeliverable response, the email must have been received, but ignored. He then submitted a series of six complaints, including that his initial complaint had been ignored, and then that that complaint was not taken seriously, and that it was not logged. I did not uphold this aspect of his complaint because there was no evidence that his initial email was received (indeed I thought it very likely that it had not), as a result of which all of his subsequent complaints fell away.

The CRT had decided to restrict Mr E’s licence on the basis that his cruising pattern was insufficient. During a period of just over 10 months in 2015-16 his boat had travelled a total of 29.5 miles, and the furthest points of travel were 10.1 miles apart. He said that the reason for the limited travel was because his boat (a widebeam barge) kept getting stuck because of low water levels. I did not consider that the evidence that this had happened (or that if it had, he had notified the CRT) was conclusive. He said that although he had made several telephone calls asking for the water levels to be increased, the complaints were ignored or their existence denied.

I was not persuaded by Mr E’s suggestion that the CRT was deliberately manipulating the levels of the canal to make it difficult for liveaboard boaters to comply with the continuous cruising guidance, not least because if so it would affect all boaters and not just those without home moorings, and I had seen no evidence of a more widespread problem. I did not accept that the CRT was deliberately manipulating water levels, nor did I accept that the CRT should remove the licence restriction, and so I did not uphold these aspects of his complaint. I suggested that if Mr E had genuine difficulties cruising then he should keep a clear record of the events.

Case No 916 – complaint about nuisance caused by a boater

Ms D lives in an apartment overlooking a canal. For several months an unlicensed boat had been moored at a 14 day mooring outside the apartment. Ms D and other residents had complained to the CRT and to the Local Authority that the boater had been causing a nuisance by, among other things, running a noisy generator, playing music at unacceptable volumes and during unsocial hours, and chopping wood during the night. His behaviour, when confronted by residents and Local Authority representatives, has been described as aggressive and antisocial.

Ms D complained to the CRT, which accepted that the boater was causing a nuisance. Under section 8 of the British Waterways Act 1983 the CRT can remove a boat which is moored without lawful authority. The CRT was trying to find a solution to the problem, but said that where a boater lives on a boat it was unable to remove it from its waterways without going through a formal legal process, because of the risk of making the boater homeless. The process of removing a boat in such circumstances takes several months because it is subject to courts’ timetabling and the availability of judges.

The Local Authority has powers under section 80 of the Environmental Protection Act 1990 to tackle nuisance by the use of abatement notices. In this case it had issued a notice about the noisy generator, but the generator was then replaced with a quieter one. With the onset of warmer weather residents complained more about the boater causing nuisance by playing music. In order to enforce an abatement notice a Local Authority representative must witness it personally. While it could take action to reduce the nuisance level, the Local Authority could not remove the boat, which is something only the CRT can do.

The purpose of my investigations is to establish whether there has been any maladministration on the part of the CRT, and if so whether this has led to injustice suffered by complainants. In this case I did look at what options were open to the CRT, and whether there was more that it could do to resolve the situation. My conclusions were:

• I was satisfied that at the time of my investigation the CRT could not legally forcibly move the boat.
• I was satisfied that the CRT was doing everything it reasonably could to use the legal powers available to it to have the boat removed.
• I was also satisfied that the CRT was doing everything it reasonably could to remedy the situation by means other than its legal powers.
• The Local Authority did have some powers at its disposal to remedy the situation, but not to remove the boat, and it was not within my remit to investigate its role in the situation.

Case No 915 – complaint about licence restriction related to cruising patterns

Mr C is a continuous cruiser who occasionally takes winter moorings. The CRT sent a standard letter to all continuous cruisers in March 2016, explaining the policy on continuous cruising, adding that if it had concerns about a boat’s past cruising pattern it would get in touch before the licence renewal to explain what would happen. In April 2016 the CRT wrote to Mr C to say that based on his cruising pattern it was offering to renew his licence on a 6-month basis. He complained to the CRT, which accepted that the boat sightings data was incomplete, concluding that the deficiency in the data was as a result of human error or a failure in the collection process. The CRT apologised, and Mr C was able to have a 12-month licence.

Mr C was understandably aggrieved about any suggestion that he was failing to comply with the guidance for boaters without a home mooring. He said that the recent changes in enforcement of the guidance had not previously affected him, but he now questioned whether the complaints of those who had been subject to restrictions may not after all have been so far-fetched.

As well as the CRT having incomplete sightings data, Mr C had also taken a winter mooring. The April 2016 letter did say that if he felt that the decision was incorrect he should contact the local Enforcement Officer. I said that there was an onus on boaters to provide the CRT with information, particularly if they are registered as continuous cruisers but then take a permanent home mooring or a winter mooring. It transpired that in 2013 the CRT had processed Mr C’s boat licence as a continuous cruiser as it did not have his current mooring status. The CRT explained that this was its only option at the time as Mr C had not updated his mooring details on his licence renewal form.

If Mr C had earlier provided the CRT with up to date information about his mooring status there would have been no further action. He did update it, but only after he was put into the restricted boat licence process. I was not able to conclude that the CRT’s process was draconian, or that the correspondence amounted to the use of bullying tactics. It did highlight the importance of both the CRT and boaters ensuring that data are kept up to date, and I said that there must be a responsibility on the part of the boat owner, where a continuous cruising licence is issued, to notify the CRT of any changes in mooring status.

Although Mr C had asked me to consider the wider situation of CRT’s enforcement of the continuous cruising rules, I said that I could consider only his situation. I accepted that he felt upset about the CRT’s approach in his case, but I could not conclude that the CRT’s overall approach was heavy-handed, noting that it had provided a mechanism to halt the licence restriction process.

Case No 906 – CRT refusal to issue a licence until the licence fee arrears had been paid

Mr B brought his boat onto CRT waters in November 2014. He wanted to purchase a 12 month licence starting in January 2015. As he is a liveaboard boater he used the address of a local Post Office, but around that time the management of the Post Office changed hands, and the new owner decided not to continue offering a Poste Restante service for boaters, and returned post from CRT to Mr B, marked “addressee unknown”. Mr B therefore did not get licensing correspondence from CRT, comprising payment details and the licence discs. This meant that he was unaware of the date and amount for the first payment, to be taken from his bank account by direct debit.

When the CRT tried to take payment, it was declined. This resulted in Mr B’s bank charging him £90, as well as the CRT adding charges to Mr B’s account because two direct debit requests had been refused. During the complaint process CRT found that even though the licence documentation had been returned, the licensing team had not notified the credit control team. The CRT waived the two unpaid direct debit charges, and also credited Mr B’s account with £90 to cover his own bank charges, as well as a further £50 payment to recognise the inconvenience he had suffered, totalling £140.

Mr B did not accept this. In bringing the complaint to me he said that he had never got the £140. By that time he owed two months’ licence charges for November and December 2014, plus the full 12 month licence fee for 2015. Because his account was in arrears, CRT decided that he must pay the 2016 licence fee in full, and it also charged him a £150 late payment fee for the 2016 licence because he had paid nothing by the end of the first month.

Even though the CRT tried to take a direct debit payment without notifying Mr B, this did not mean that the charge should be cancelled. Although there had been a communications failure within the CRT, it had recognised the fact, and had apologised and rectified the matter in what I considered to be a fair and reasonable manner. I said I would not have expected CRT to pay the £140 credit direct to Mr B, because his licence account was in arrears. Mr B also suggested to me that the credit should be applied to his 2016 licence fee, to reduce the outstanding charges so that he could settle the account and avoid further enforcement action. However, I said that I could see no reason why this should be done, given that the credit was to reduce the 2015 licence fee, still unpaid, and could not be transferred to a more recent licence fee.

Mr B also complained about what he said was poor customer service from CRT, in particular a person on the credit control team. The CRT had offered to provide a different point of contact. When I listened to the recordings I did accept that the conversations were sometimes difficult, but I did not consider that there had been anything improper, and indeed at least two of the calls had ended on a positive note.

I did not agree with Mr B that his trust in the CRT has been abused, or that it had acted outside its own policies and guidelines. I also did not agree that the CRT was guilty of intransigence or had been untruthful or unreasonable, and I did not uphold the complaint.

Case No 898 – CRT refusal to issue a licence without the boat having a valid BSS certificate

Ms A bought a boat which needed extensive restoration. While she was doing it her licence became due for renewal, but the Boat Safety Scheme (“BSS”) certificate had expired and the CRT would not issue a new licence without the boat having a valid BSS certificate. By the time Ms A had got a new certificate the licence was overdue for renewal, and the CRT applied a late payment charge of £150. She complained to the CRT that it was not fully explained to her that a BSS certificate was necessary.

The CRT’s detailed guidance does make it absolutely clear that Ms A’s boat did need a BSS certificate to be licensed. In this case, Ms A said that the CRT had told her that it was OK for her to wait for certain fittings to be installed before getting a BSS certificate. The CRT accepted that Ms A’s explanation for thinking that she would be allowed to renew without having a certificate was plausible, and initially offered her £100 in compensation on a goodwill basis.

Neither side was able to provide irrefutable supporting evidence. Ms A had not got a written statement that her boat did not immediately need a BSS certificate, nor had the CRT evidence that it had told her that she did need one. However, I would not necessarily have expected the CRT to be able to prove its position given that its guidance is so clear.

There was a further complication in that the CRT had tried on 4 January 2016 to take licence payments by direct debit from Ms A’s bank account, but that the requests had been declined due to insufficient funds. The first of January 2016 was not only a bank holiday but a Friday, so the request was not made until Monday 4 January. Ms A explained that had the CRT taken the money on 1 January there would have been sufficient funds. Her view was that the CRT should have made it clear that the payment would be requested on 4 January. She was charged £10 by her bank, and the CRT applied two charges (the second one was for a further declined request on 16 January) of £30 to her account for the failed direct debit requests. I said that it was widely understood that direct debit payments were not taken on bank holidays or at weekends, and I would not expect the CRT to have notified Ms A that the payment would be taken a few days late.

However, to resolve the complaint the CRT offered Ms A £167.13. £107.13 was to clear the final instalment of the 2015 licence payment, and £60 was to cancel the direct debit charges of £60. Ms A did not accept the offer, and remained adamant that the CRT had made it quite clear that she did not need a BSS certificate at that point.

I could not uphold the complaint, because there was no evidence that the CRT had told Ms A that she did not need a BSS certificate. I concluded that it was more likely than not that the CRT had made it clear, in various ways, that Ms A did need a BSS certificate, but that in making its offer it had reflected the scope for uncertainty. Nonetheless, and mainly because the complaint was primarily not about what was printed, but what was said or understood in telephone calls, the contents of which have not been formally recorded, I decided that the CRT should increase its offer by £75, which Ms A accepted.

This is the complete list for the year

Case No 888 – CRT refusal to issue licence without evidence of home mooring

Organisation Q had a boat moored on a canal. As a member of a boat club it was able to benefit from a group mooring arrangement, under which boats owned by members of the club could get preferential mooring rates. The moorings were regarded by the Trust as home moorings, and so the organisation was able to licence the boat under section 17.3(c)(i) of the British Waterways Act 1995 (“the Act”).

Since early 2013 the Trust had had concerns about the boat’s mooring status, having received from the club a list of boats which did not include Organisation Q’s boat. The Trust asked for further information, and received a document confirming that the boat did not have a lawful mooring at the club. The Trust decided that under the circumstances it was not appropriate for it to issue a licence for the boat as the necessary conditions had not been met.

The complaint was primarily about the refusal by the Trust to issue a licence for the boat, on the basis that it did not have a home mooring.

The Trust argued that it was up to Organisation Q to comply with the legal requirements of the licence application process, either by providing evidence to verify the claim of having a mooring, registering as a continuous cruiser and complying with the relevant guidance, or removing the boat from Trust waters.

Organisation Q said that the boat club had not confirmed or denied its continued mooring entitlement, and that it was therefore unable to provide the “proof of mooring” which the Trust required to issue a licence. It argued that this could not be regarded as being its own fault. The organisation wanted clarification from the club of whether the mooring rights had been withdrawn, and that if so it was a group decision at a minuted meeting of the club in line with its constitution.

There seemed to have been a breakdown in relationships between the organisation and the boat club. It was unable to get information about its membership directly, but the organisation would not allow the Trust to get further information from the boat club without the organisation’s permission, which could only be agreed at a meeting at which legal advice would be needed. The cost of arranging the meeting would be £200, which it asked the Trust to pay. The Trust did not agree, and I did not see why it should be expected to fund a meeting of the organisation to discuss the issue.

The key questions for me were whether Organisation Q was still a member of the boat club and whether, as the organisation suggested, the Trust should have to provide evidence that the boat did not have a home mooring, or whether the organisation should have to prove that it was a member. If it was not, the Trust could legitimately refuse to issue a licence unless there was evidence that the boat was continuously cruising. The Trust said that its sightings evidence over a lengthy period showed that the boat had not been seen at the boat club mooring.

My view was that it was primarily for the organisation to show that it was a club member and had a home mooring, and not for the Trust to have to prove the converse, particularly in light of the information it had already received. However, I was prepared to ask the club for further information. The organisation was not content for me to ask the boat club to send any information directly to me, but I could ask it to provide it to the organisation, which would pass it on to me. I contacted the Secretary of the boat club, having been given the name and contact details by the Trust. Although I did ask it to respond to the organisation, it responded to me, confirming that the organisation had not been a member of the club since October 2012 and was not entitled to use the club’s moorings.

I was satisfied that the information from the boat club was from an authoritative source, and that the organisation was not a member of the club and had no moorings rights with it. I concluded that the Trust was entitled to refuse to issue a licence under section 17.3(c)(i) of the Act, and I did not uphold the complaint.

Although the organisation wanted more detailed information from the club, I explained that my role was to resolve the complaint by it about the Trust, and that I had no remit to intervene in the relationship between it and the club. The club had provided me with the information I needed to resolve the complaint before me, and I could not require it to do anything to assist the organisation.

The organisation said that the mooring contract was between it and the boat club, and not the Trust, and that the Trust had no interest in that contract. I did not disagree, but I said that the Trust did have an interest in whether such a contract existed in the first place, because that affected the type of licence which it issued.

Case No 889 – Disclosure of location of boat and consequences

Mr P has a boat, which he moored at a BWML marina. He didn’t have a residential mooring, but stayed on his boat a few times each week, partly to reduce commuting times and costs.

He was on his boat one evening when a person he did not know banged on it and shouted his name several times. This person remonstrated with Mr P about a certain issue, but although he was angry he was not aggressive or threatening. The person had gained entry to the (gated and locked) marina by coming in behind somebody who had a key. A member of BWML’s staff had disclosed the whereabouts of Mr P’s boat.

In view of the fact that the location of his boat was known, Mr P was sufficiently concerned for his safety and that of his boat that he moved it to a (non-BWML) marina some distance away.

The Trust accepted that the complaint was wholly justified, and that the circumstances giving rise to it should never have happened. It apologised on its own behalf and that of BWML for the incident, and the anxiety it had caused Mr P.

As a resolution, the Trust said that BWML would hold open Mr P’s berth for up to six months for him to return, and that the first three months of his next annual contract would be free of charge. To reflect six months of additional travelling and associated costs the Trust made an offer of financial compensation to ensure that Mr P was not financially disadvantaged by the situation, and calculated that the additional costs would be £400.

Mr P did not accept this, noting that the situation had caused him emotional stress and had had a major effect on his family and friends. He said that he did not plan to return to the BWML marina, which meant that there was a larger financial impact than he had anticipated.

He explained to me that he did not think it reasonable for him to return, and wanted a larger compensation payment to reflect additional travelling and other costs, although he did accept that the Trust would not pay his additional costs indefinitely.

The Trust had accepted that it was reasonable for Mr P to have moved his boat, at least temporarily. The key point I considered was whether it was unreasonable to expect Mr P to return with his boat to the BWML marina, and whether if so the Trust should increase its compensation to reflect the additional travelling costs.

I accepted that Mr P was very concerned about a possible threat to him and/or his boat, but I did not consider that his concerns were fully justified. I accepted that any risks could not entirely be ruled out, but I did not feel that his only reasonable recourse was to stay away permanently. The marina does have a locked gate, and any future risk of a member of staff disclosing Mr P’s whereabouts must be regarded as having been reduced. I noted that any future damage to the boat, or threat of physical violence, must potentially be regarded as criminal acts, for the police to deal with. I also noted again that even in the situation which gave rise to the complaint, the person had not been aggressive or threatening.

While I did not consider that Mr P’s safety would be so severely compromised that it would be unreasonable to expect him to return to the BWML marina, the Trust had offered to hold open the berth for up to six months, and the first three months of his next annual contract would be free.

My view was that the Trust’s offer of resolution, of a payment of £400 plus three months’ free mooring at the BWML marina, was fair and reasonable. However, by moving his boat to another marina he would not be able to benefit from the offer of three months’ free mooring. On this point I did not think that Mr P should lose out financially as a result of his decision to move away, and I decided that the Trust should reimburse him the equivalent of three months of the first year’s annual mooring cost for his boat at the new marina, as long as it did not exceed the BWML marina costs.

Case No 892 – no 25% discount for boats on the connected Montgomery Canal

Mr O has a home mooring on the connected section of the Montgomery Canal, just below Frankton Locks. The southern section of the canal has no connection to the main network, and moorers who exclusively use that section benefit from the Trust’s 25% disconnected waterways discount off the licence fee. Mr N explained that he and other moorers below Frankton Locks had previously benefited from the discount, but that the Trust had decided to remove it. His view was that as the locks could be used for only two hours per day, moorers should still benefit from the full discount, or at least a reduced discount to recognise the fact that access to the rest of the network was restricted to certain times of the day.

I accepted that access was limited to certain time periods, but my view was that this limitation, together with the need to book ahead (which could be done as late as 10am on the day of travel), was not so onerous as to effectively sever the section of the canal from the rest of the network.

Moorers on disconnected sections of the network benefit from the discount only if their boats remained exclusively on those sections. If they move their boats temporarily to another part of the network (a task which would be regarded as onerous because it would entail craning the boat out of the water), they become liable for the full licence fee. Even if moorers on the connected section of the Montgomery Canal which is below Frankton locks were granted a 25% discount, they would still become liable for the full fee if they were to go through the locks even once in a year.

The decision by the Trust to charge the full fee is a matter of policy, and I could find no evidence of maladministration, injustice or unfairness in the policy or the way that it had been set.

Case No 881 – grounded boat on the Ribble Link

Mr N was travelling south from the Lancaster Canal via the Ribble Link. The link connects canals on opposite sides of the River Ribble near Preston, which is a tidal river so crossings can be made only during certain periods which are determined by tide heights and times. The route south from Lancaster Canal is via the Savick Brook, which is a tidal waterway. The level of water in the Savick Brook is maintained by a rotating sea gate which is about one kilometre north of the River Ribble. Looking upstream, just before the sea gate is first, a holding pontoon where boats tie up while waiting for the sea gate to be opened, and second, the Blackpool Road Bridge, which is impassable at high tide because of insufficient air draught.

On his way down the Savick Brook, Mr N’s boat was temporarily grounded as he rounded a bend, and the time he lost freeing the boat meant that because of the rising tide he was unable to pass under the Blackpool Road Bridge. Mr N said that he was told by Trust staff to tie up just before the bridge, although this was later denied by the Trust.

Looking downstream, there is a right hand bend immediately before the bridge. During my investigation I visited the site, and it was clear that it would not have been possible to tie up on the inside of the bend. On the outside there are rushes at the water’s edge, and Mr N tied up there to wait for the water level to drop so that he could get under the bridge. He was not aware that there were submerged steel pilings about a metre from the water’s edge, and when the water level dropped his boat was stranded on them. Trust staff altered the River Canal Rescue (RCR). The Trust said that it told Mr N that there would be a £950 charge, but Mr N insisted that he was not told; indeed that if he had been told there would be a charge he would have refused the rescue. With the RCR’s assistance Mr N managed to free his boat the next afternoon.

Although the Trust said that the pilings were indicated by marker poles, Mr N said that he did not see any in the place where he tied up. The Trust did accept that one of the poles was missing, but a photograph which Mr N provided showed no evidence of any poles in the central section of the pilings and it did not seem to me that this was because they had been demolished by Mr N’s boat. On my visit I could see that there were five white-tipped marker poles, which all looked fairly new, and were all weathered a similar amount, and the tips of all were visible at high tide on that day. In the central section, where Mr N was stranded, there were no old poles but there was evidence of several stubs where they had broken off.

This case was not clear-cut. The Trust told me that there had been no similar incidents in the past five years, and after a reasonable Internet search I could find no evidence of any such events. This was the first time Mr N had navigated the Ribble Link, and the Trust said that he was a new licence-holder. It seemed to me that it was possible that the initial reason for Mr N’s delay in going down the Savick Brook, i.e. the temporary grounding, was possibly his lack of experience, although this was not a major factor in my analysis. Once he had lost time, my view was that he had little choice but to tie up before the bridge.

It was impossible to be sure whether he had been told of the RCR call-out cost, but short of leaving his boat to the vagaries of the tidal flow he had little choice but to accept the rescue. Mr N said that at the time he had been told that the sea gate was slipping and letting out water. Mr N argued that this was the cause of the initial grounding, but when I asked the local supervisor he said that while it did drop fractionally it would have made little or no difference to the water level higher upstream.

The Trust’s loss adjusters had offered Mr N 50% of the call-out charge, i.e. £475. For a number of reasons I did not consider that the Trust should accept full responsibility for the charge, but I did conclude that once Mr N reached the Blackpool Road Bridge he had little choice but to tie up there, notwithstanding the Trust’s statement that it had not told him to do so. I increased the compensation to £775 in my final report, or about 82% of the call-out charge (the Trust would have to pay the difference of £300), to reflect the lack of certainty about what happened and what was said but leaving the balance of probabilities in Mr N’s favour.

Mr N was concerned that this could happen again to another boat, with potentially serious consequences. I said that I had seen no systemic evidence of a problem, but I did draw his concerns to the attention of the Trust.

After I issued my final report, and after he had accepted it, Mr N submitted further photographs which in his view showed that the water level in the Savick Brook was too low for unimpeded transit. I explained to him that this was evidence which was already in his possession, and which he could have submitted after my draft report, but had not, and I could not now re-open the investigation and consider the evidence.

Case No 842 – BWML customer service and contract issues

Mr M had a mooring at a BWML marina. He and his business partner entered into a 12 month mooring contract with BWML, from 1 October 2013 to 30 September 2014. There were several aspects to his complaint: what he regarded as a BWML staff conspiracy to try to evict his business partner from the boat and to seize it illegally; intimidating and bullying behaviour by the site supervisor and the actions of the senior finance officer; the state of the facilities at the marina; health and safety issues; and the flouting by BWML of many of its terms and conditions. Mr M was seeking compensation for his costs and for the way he had been treated, apologies, and urgent correction of the contractual problems.

Mr M said that although he had made legitimate complaints about a number of issues, he had been treated very badly with regard to those complaints, and had also been lied to by senior Trust and BWML staff about the contractual terms and conditions. He said that there had been a complete lack of communications between Trust and BWML staff, and that he had incurred significant expenses during the course of his complaint, including seeking Judicial Review, the higher cost of temporary moorings after his contract was terminated, and the necessity of having to sell his boat “canalside”, at a lower price, without a resident’s mooring.

The origin of the complaint seems to have been a problem about a misallocation of payments of mooring fees (which was in due course corrected), as well as mooring fee arrears, and while such matters are often resolved amicably, this broadened into other issues. The arrears led to a “lien” being placed on his boat, in effect seizing it as security for outstanding payments. Mr M argued that the use of the term “lien” was legal jargon and rendered the contract illegal, affecting not just him but 2,500 other BWML customers.

During the first half of 2014, Mr M had been corresponding with BWML about mooring fee arrears. BWML was partly responsible, because it had incorrectly allocated payments made by Mr M to an account for the previous holder of the mooring. Even once this was corrected there were still arrears, and BWML then placed a lien on the boat. From July 2014 the positions of the parties became more confrontational, after Mr M set out his list of complaints.

In respect of the allegations of bullying and intimidating behaviour by BWML staff, my view was that in a dispute such as this it may be a matter of subjective opinion as to whether a person had been simply making a position clear or had been using inappropriate behaviour. BWML’s view was that the behaviour of its staff was not inappropriate, although Mr M disagreed. I had no records of any discussions, and there was insufficient evidence for me to reach a conclusion on this issue.

BWML seemed to have accepted that the marina facilities were in a poor state, because at one point it commissioned a full clean and survey of the drains. On the safety issues to which Mr M referred, a Council inspector visited and tested ladders but found that they were adequately fixed (although this was not an issue in the original complaint). On both issues, Mr M said that he continued to visit people at the marina and therefore had a continuing interest. However, as he no longer had a mooring at the marina I could not consider the issues further.

The term in BMWL’s terms and conditions, which Mr M complained about, stated:

“BWML reserves the right to exercise a general lien upon any vessel and/or other property belonging to the Owner whilst in or at the Marina until such time as any money due to BWML [is paid] by the Owner.”

As an ombudsman I cannot decide whether or not a contractual term is unfair. Guidance published by the Office of Fair Trading (now part of the Competition and Markets Authority) states that the term “lien” is legal jargon and should be avoided in consumer contracts, noting that alternative wording is possible. In its terms and conditions dated 1 October 2015, BWML added a footnote explaining what a lien is.

It was not clear that the wording would have rendered the contractual term unfair or was in any way illegal, even before the footnote was introduced, but I considered that the footnote was helpful. I said that even if the use of the word “lien” could be regarded as unfair it would not affect the rest of the contract. It did not seem to me that Mr M had been disadvantaged specifically by the use of the word, and it was clear that he was aware, even if not at first, what a lien is.

Mr M was separately pursuing this aspect of his complaint with three local authorities, for where he lives, where the marina is located, and Leicestershire County Council (BWML’s Home Authority). However, there seemed to have been no evidence found of significant consumer detriment and as I understand it no enforcement action was taken.

As to whether BWML had inappropriately placed a lien on Mr M’s boat, his account was in arrears, and I had no reason to suspect that it had. At one point period Mr M refused to pay his outstanding fees until the problems were resolved, but did pay a short time later.

In view of the events BWML decided not to renew Mr M’s mooring agreement. He stayed for a short time longer, on a short term mooring basis until the end of the notice period, before leaving.

This was a long-running complaint, which took a considerable amount of time of the parties’ involved and cost both sides money. The issues were not without some merit; for example, BWML inserted a clarificatory footnote explaining what a lien is; BWML did initially misallocate some payments; and the Trust did apologise regarding some points.

Mr M asked me to consider the costs he had incurred, but my view was that he could probably have avoided the breakdown in relations which led to BWML terminating the mooring agreement, and the situation reaching the point that it did, in which case he would not have incurred the costs he listed. I was not satisfied that the costs were necessarily incurred, nor did I conclude that there was evidence of maladministration or unfair treatment by the Trust, and I did not uphold the complaint.

Case No 819 – the removal from use of Bollington Wharf on the Macclesfield Canal as a winding location

Mrs L complained about the closure of a winding hole (a place for turning boats) at Bollington Wharf on the Macclesfield Canal. She questioned why it had been closed, what consultations had taken place, where the location of the replacement would be, and when it would become available.

The Trust said that although the site had been used as a winding hole it was not recorded in its operational records as being one. It explained that the site had been closed to allow a company to install a pontoon to operate a day boat business, and that local operators had been consulted informally. It added that insofar as the Transport Act 1968 may apply, the removal of the opportunity to turn did not make the canal unsuitable for navigation, and it was not required to keep the space usable as a winding hole.

I accepted that the site had customarily been used as a winding hole, but it was not recorded as such in the Trust’s operational records as one. Its status as a winding hole seemed to be a matter of some debate. I was told that Nicholson, which is generally regarded as an authoritative guide, does refer to the wharf as being a winding hole, and various Internet websites showed it both as being a winding hole, and not.

The Trust did say that had it officially recognised the wharf as a winding hole it would not have considered allowing a pontoon to be installed there, although in my view there was no doubt that the Trust was aware that it was used as a winding hole, and it had anticipated a number of complaints.

Mrs L’s view was that the Trust has disregarded its own consultation policy, as published on its website. She considered that alterations to winding holes were matters of national concern and that full public consultations should be held. I agreed that it was a matter of concern but was not persuaded that it was a national issue.

There are winding holes within a couple of miles north and south of the wharf, but it is not clear whether they can accept the longest narrowboats, and the removal of use of the wharf to wind boats would certainly have caused difficulties for some boaters.

On the basis of the information provided to me, I did not think that there was evidence of maladministration, or consequent injustice or unfairness which would have justified me recommending that the Trust require the wharf to be reinstated to its former state.

Towards the end of my investigation, Mrs L said that concerns had escalated, and that the Trust’s Chief Executive, Richard Parry, had taken a personal interest in the matter. Her view was that there was little point in my investigation continuing until such discussions had been completed. I closed the investigation, pending further developments, on the understanding that I would re-open it if appropriate. Discussions are still continuing, and I shall update this summary with any significant changes.

Case No 875 – damage to a car from a barrier at a swing bridge over a canal

In June 2015 Ms K was driving in her car towards Theale in Berkshire, and was about to cross the swing bridge over the Kennet & Avon Canal. The bridge needs to be opened to allow boats to pass, and this is done by a key-operated operating panel which also initiates the sequence of traffic lights and barriers including the sounding of an alarm. There are in-road sensors which manage the traffic light sequence based on the position of vehicles approaching the bridge. The barrier will be lowered only after a signal is sent from the traffic light control system that all lights are at red. The Trust issues boaters with keys to use the operating panel. The barriers continue to descend only as long as the boater keeps the button pressed.

As Ms K was approaching the bridge, a boater had just stopped to open it. Ms K said that there was no audible warning, and that she was unaware that the bridge was about to be opened until the barrier came down on her car, causing further damage as she reversed. She said that even though the person operating the bridge saw her, she kept the button pressed. Her view was that the Trust was at fault because the alarm did not sound, and she also questioned whether there was a sufficient time delay to allow vehicles to cross the bridge. Staff from the Trust visited the site, observed the bridge-opening procedure and concluded that it was working satisfactorily. The Trust said that the traffic light control system was not managed by it but by the local Highways Authority.

Although the boater operating the bridge should have been able to stop the sequence, she didn’t, but she can probably not be identified. Whether the audible warning was working on the day of the incident can almost certainly never be known, but it was working at the time of the Trust visit. I was satisfied with the Trust’s explanation that the traffic light sequencing was the responsibility of the Highways Authority, and did not see how the incident could have arisen as a result of an act or omission by the Trust. Although Ms K suggested that the Trust should have a tighter procedure for distributing keys, and should provide safety training, I have seen no evidence of any systemic problem and this would not have been a proportionate measure. I made no recommendations.

Case No 862 – increases in widebeam charges at a BWML marina

This complaint was about mooring charges at a marina in London owned and operated by British Waterways Marinas Limited (“BWML”). In 2012-13 I investigated a complaint about the charges for this marina (Case No 655 - BWML mooring charges). Mr J complained that BWML had, one year into a 10 year contract to cap any year-on-year increase in mooring fees at 3%, reneged on its agreement by issuing an invoice which increased the mooring fee by over 12% on the previous year. He also complains about BWML's actions when the issue was first raised, such as terminating the agreement and issuing threats while the invoiced amount was in dispute.

In 2013 BWML introduced a new residential fee structure at the marina. At the same time it introduced a widebeam surcharge, which was provided for within the terms and conditions but which BWML had not hitherto applied. The provision in the terms and conditions permitted BMWL to levy a widebeam surcharge of between 30% and 100% of the Length Overall (LOA) charge for boats wider than 3m, and BWML decided to set the surcharge at 30%. Rather than introduce the full 30% surcharge immediately it would do so in three 10% increments.

Moorers could opt into a new residential mooring agreement, under which for the first three years BWML said that increases would be capped at 3%. Mr J said that the way the contract was worded made it clear that the whole charge, taking into account the LOA charge and widebeam surcharge, would be subject to the 3% cap. He also said that it was his understanding that this had been BWML’s intention.

The Trust accepted that there had been an administrative error in the way that BWML had drafted the residential mooring licence, but considered that the complaint was otherwise broadly groundless. Its view was that the available information about mooring fees made it clear that the price cap applied to the LOA charge and not to the widebeam surcharge. It has since changed the wording of the licence to make it clear that the 3% cap applies to the LOA charge and not to the composite charge which includes the widebeam surcharge. The effect is that although the LOA charge cannot increase by more than 3% in each of the first three years, the total charge will increase by a greater amount because the widebeam surcharge will be a percentage of the LOA charge, i.e. 10% in the first year, 20% in the second year and 30% in the third year.

If I were to take a literal interpretation of the original licence wording it would mean that even as the widebeam surcharge was phased in, the total mooring fee increase could not exceed 3%. When investigating the complaint in Case No 655 my understanding had been that there would be two elements to the mooring fee, and that only the LOA charge would be subject to the price cap (although given that the widebeam surcharge is a specified percentage of the LOA charge it would maintain a constant relationship with the LOA charge). In considering complaints I must take into account the interests of both parties, as well as the principles of fairness and natural justice. In light of my understanding of the new mooring fee arrangements in 2013, I did not consider that BWML should be required to adhere to the literal interpretation of its initial licence wording.

Case No 860 – frost damage to a boat while in the care of British Waterways

In March 2009 the Trust’s predecessor, British Waterways (BW), had seized Mr I’s boat under Section 8 of the British Waterways Act 1983 and taken it to a boatyard some distance away. BW continued to be responsible for the boat until March 2010. There had been a prolonged very cold spell between December 2009 and January 2010, which the Met Office had described as being the most widespread and prolonged spell of this type across the UK since December 1981/January 1982. Shortly before the cold weather started Mr I had emailed both BW and the boatyard asking them to ensure that his boat was fully winterised. Mr I did not finally visit his boat, with the aim of getting it back, until March 2015, at which point he discovered that there had been several burst pipes and other leakages. It seemed that the engine coolant had been drained, but the freshwater systems had not. Repairing the damage necessitated the removal of much of the internal fittings, and took Mr I and his family many weeks, as well as the direct costs of new parts and fittings.

The Trust said that Mr I became responsible for the boat in March 2010 and that it could not be known whether the frost damage had occurred in the first winter or in any of the subsequent five winters. Having read the Met Office summary for December 2009 to January 2010, I concluded that even if subsequent winters were likely to have been cold enough to cause pipes to burst, it was highly probable that the damage had occurred during the winter of 2009/10 while the boat was in the care of BW.

I did not consider exactly where the fault lay, but it was clear to me that the boat had not been fully winterised. I was satisfied that the responsibility for the care of the boat was ultimately that of BW, and decided that the Trust should make a payment to Mr I of £11,500 to cover the costs of making good the damage.

Case No 856 – the right to assign a houseboat certificate and mooring on sale of a boat

Mr H moors a boat on the Regent’s Canal. Although he used to have a houseboat certificate for the boat, at the time of the issues giving rise to the complaint he did not, and he wanted the Trust to issue him with one which could be assigned to a purchaser of the boat. The Trust, in responding to Mr H’s complaint, explained that he could not have a houseboat certificate because he did not have planning consent for a residential mooring. However, the Trust later sent him a letter saying that he should have a houseboat certificate as his boat fell within the statutory definition of a houseboat under the British Waterways Act 1971 (“the 1971 Act”) as it was not used bona fide for navigation. However, the Trust said that this would not give him the right to assign the certificate on sale of the boat.

Having established that the Trust was prepared to issue Mr H with a houseboat certificate, I decided that whether it would be assignable should be determined by the Trust’s own rules and policies. There are certain conditions under which a houseboat certificate would not be assignable, but there was no suggestion that any applied to Mr H, nor did the Trust rely on any of them as a justification for not allowing a certificate to be assignable, so my view was that the Trust should issue Mr H with a houseboat certificate and that it should be assignable.

Prior to some point in 2012, houseboat certificates issued before 31 July 2010, and assigned to a new owner, could be automatically renewed on expiry, but in 2012 the Trust changed its policy such that while the unexpired portion could be assigned, they could not be automatically renewed on expiry. Although Mr H had wanted any houseboat certificate to be assignable and to be renewable indefinitely, the 1971 Act provides only for a houseboat certificate to be transferred for the unexpired portion of the current certificate. My view was that there was no basis on which I could decide that an assigned certificate should be renewable indefinitely.

To alleviate the possibility that Mr H’s existing mooring permit would not have the same end date as the new houseboat certificate, the Trust proposed that it issue a new mooring permit at the same time as the houseboat certificate, and this became my recommendation. The unexpired portions of both could then be assigned to a new owner.

Case No 839 – advance booking of the Liverpool Link and a Liverpool mooring

In May 2015 Cunard held a 3 Queens event in Liverpool, where three of its liners would be present at the same time. Mr G had previously been a Cunard customer, and received notification of the event from Cunard in May 2014. He and his wife very much wanted to attend what they felt would be a popular and prestigious event, and realising that they would be away in December 2014 and January 2015 they submitted an application in person at the Trust’s Wigan office in March 2014, for a crossing on the Liverpool Link and a mooring in Salthouse Dock. At the time bookings for 2015 were not available, so they used a 2014 booking form and amended the year by hand at the top of the form. The Trust did receive the application, and provided me with a copy.

Mr G said that he heard nothing more until he and his wife returned home from holiday on 9 January 2015 to find that an application pack about booking the Liverpool Link had been posted to him. The Trust had also emailed him on 6 January (using the correct email address). Mr G submitted a new application form but was too late to get a confirmed booking and was put onto a waiting list.

The Trust explained that it did not take advance bookings, and opened bookings for each year in January. It said it would accept bookings only on current paperwork so that boaters were aware of the arrangements in the year they used the link.

There were many aspects of the case that I could not reconcile. Although Mr G said that he had delivered a booking form by hand and had no doubt that the Trust had accepted it as such, he did not immediately contact the Trust when he found the new application form on 9 January 2015 to query whether they had recorded his original booking, but sent a new application. The Trust emailed him on 19 January to say that the bookings were full, at which point Mr G’s wife telephoned the Trust. Mr G did not say whether he had received the Trust’s email of 6 January, but he had not replied to it. If he had seen the email soon enough, even though he was away he could have booked a crossing online.

The Trust explained that its Wigan office had a very stable staff, who would have known that they could not accept bookings as early as March 2014. However, it did accept that there was some room for doubt and offered Mr G a crossing in June 2015 for the departure of the Queen Mary 2, as well as £50 spending money. I did not consider that it could be established exactly with any certainty what had happened, and my view was that the Trust’s offer was fair and reasonable. As Mr G said that he would be cruising at the time I decided instead to recommend that the Trust make a goodwill award of £75, but Mr G did not accept it.

Case No 838 – the Trust’s actions in the section 8 removal and subsequent sale of a boat

Note: Although the earlier events in this complaint took place before the functions of British Waterways were transferred to the Trust, I have for convenience referred in all cases to the Trust.

Mr F moored his boat at a Trust canal mooring from around 2001. In 2008, after a period in hospital, he went into arrears on his mooring account. He did not pay off the arrears, and the Trust eventually terminated his mooring agreement and also refused to issue him with a new licence, because he did not have a home mooring, which meant that his boat was unlicensed. As it was unlicensed, the Trust issued a removal notice under section 8(2) of the British Waterways Act 1983. It eventually seized and sold the boat, and paid Mr F the balance after deducting its costs.

This was a complex case, with the positions of the parties being largely irreconcilable. Mr F said that the Trust had failed to reply to many of his letters, or had no record of having received them. He alleged that the Trust had acted illegally, for example breaching English Common Law, or Articles of the European Convention on Human Rights.

Mr F accepted that he owed money, but maintained that the Trust had agreed to allow him to pay future charges as they accrued on the understanding that he would pay the main debt when he sold his boat. I could find no evidence that the Trust had agreed to this, and indeed at one point it wrote to him to say that it would not allow the debt to remain unpaid.

The earliest evidence that Mr F had told the Trust that he intended to sell his boat and would pay off the debt with the proceeds was in a letter in January 2010. In a further letter in May 2010 he stated that on his return from absence in June 2010 he would put up the boat for sale. In August 2011 he again stated that the arrears would be paid off when the boat was sold. The Trust issued a section 8 notice on 8 November 2011, and a seven day notice on 8 February 2012, and eventually removed the boat in September 2012 while Mr F was away. It subsequently obtained an independent valuation of the boat, sold it, and sent Mr F the balance after deducting its costs, which included licence and mooring fee arrears as well as boat removal and storage costs. Mr F argued that the sale price was far short of the boat’s true value. During this period the Trust moved the boat at the mooring to a position where it was underneath pine tree branches, as a result of which there were pine resin stains on the boat as well as pigeon droppings. I was not satisfied that the Trust provided a clear explanation for the moving of the boat.

I was satisfied that Mr F could have been in no reasonable doubt about the Trust’s intentions, both in respect of the arrears and the threat of removal of the boat were the arrears not paid off. It seemed to me that Mr F had allowed the situation to develop, and that despite his statement that he intended to sell the boat he had not taken steps to do so. He maintained that the Trust had refused a face to face meeting, but I did not consider that even if there had been such a meeting it would have been pivotal in influencing the development of the situation. He also maintained that the Trust had failed to respond to correspondence, and although it did not respond to a number of letters it was far from clear in most cases that a reply was expected. The Trust did apologise for a failure to respond in a timely manner where appropriate, and in one case it did not respond at all to a legitimate question about the charges which had been deducted from the proceeds of the boat sale, even though it dealt with other points made in the same letter.

I concluded that Mr F had had adequate opportunity either to pay off the arrears, if necessary by selling his boat, but that he had not done so. I had no reason to question the independent valuation of the boat obtained by the Trust (the eventual sale price was £1,000 lower than the valuation). I could find no evidence of a clear explanation for the Trust’s moving of the boat at the mooring, and was satisfied that it had not replied to a direct question about the Trust’s deductions from the boat sale price. In view of these two issues I recommended that the Trust make a goodwill award of £100, but Mr F did not accept it.

Case No 836 – whether the Trust should apply a 25% Disconnected Waterway discount for moorers on the Lancaster Canal

Mr E moors his boat on the Lancaster Canal, which is connected to the main canal network only by the Ribble Link. He argued that because the Link is open only on some 100 days each year, and even then only at certain times and not navigable by some boats, moorers on the Lancaster Canal should benefit from the 25% discount which applies to boat-owners on certain disconnected waterways, i.e. those which do not have a connection to the main network.

The Trust’s boat licence terms and conditions state:

“Disconnected Waterways - 25% discount if the boat has a long term mooring, and will remain exclusively on one of the following waterways: Bridgwater &Taunton, Monmouth & Brecon, stretches of the Montgomery Canal not connected to the main network, River Tees.”

Mr E argued that the Trust’s failure to make it clear on the licence application form, that somebody with a home mooring on the Lancaster Canal is not eligible for the 25% discount, breached the Consumer Protection from Unfair Trading Regulations 2008 (CPRs). Although the Waterways Ombudsman is not an enforcement body for the CPRs, I said that it did not seem to me that the Trust had sought to mislead or deceive. I was not provided with evidence that anybody buying a licence for a boat with a home mooring on the Lancaster Canal was unaware of the existence of the Link, or did not know that it was not always available and needed to be booked, or was under the impression that they were buying something different from what they actually got.

Mr E’s view was that unless a passage was booked on the Link, the boat was essentially confined to a disconnected canal. Apart from those boats which were unable to navigate the Link, I could not reasonably regard the booking and the passage as being particularly onerous and, while it was not available on demand, it was open on some 100 days per year, which spanned most if not all of the cruising season. I did not see a significant difference between Lancaster Canal moorers and those elsewhere who chose not to cruise large distances. In both cases the option was there for most boats, most of the time, to use the rest of the network. I concluded that there had been no maladministration and that the Trust’s decision to charge the full licence fee was a matter of policy, and I did not uphold the complaint.

Case No 823 – the marking of shallows on the River Severn

Mr D has a boat which he moors at a marina on the River Severn. In July 2013 his boat hit an underwater obstruction near Worcester, which damaged it. He said that other people’s boats had hit the same obstruction and that in some cases the cost of repairing the damage had been substantial. Mr D felt that the Trust had been slow in dealing with and marking the obstruction.

It seems to have taken some time for the Trust to have accepted the existence of the hazard. Part of the problem is that apart from a single instance in March 2012, its incidents log had no record of any incidents at that location between 2004 and the grounding of Mr D’s boat in July 2013. Minimum Open Channel (MOC) box charts provided by the Trust, depicting the river depth and the boundaries of the navigable channel, showed that at some points on the bend in the river where the hazard was located, the MOC box was entirely outside the centre line of the river, which would generally be regarded as the safest course navigate, and that on the outside of the bend there are shallows. While this may not pose a major problem for flat-bottomed boats such as barges or narrowboats, Mr D’s boat had a V‑shaped keel and therefore a deeper maximum draught. Even after the Trust seemed to accept the existence of the hazard, Mr D felt that it was too slow in taking action to mark the hazard.

The Trust accepted that information about the hazard might not have been uploaded to its incidents database, and that there was scope for improvement in its record-keeping system. It said that this would be raised at a senior level within the Trust.

It also explained to me that once it became clear that there was a hazard, the marking of it necessitated the obtaining of planning permission from two local authorities and consent from the Environment Agency. Although Mr D at one point noted that there had been progress, his view was that a whole year had elapsed with little or no progress. I concluded that the evidence provided by Mr D, about incidents having been reported to the Trust, was persuasive. I also concluded that the Trust had been slow to act.

I recommended that:

1. that the Trust provide Mr D with an explanation of what actions it had taken, or was proposing to take, to address any deficiencies in the incident logging and reporting system, both locally and across the Trust;
2. that the Trust provide Mr D with an update on progress about marking the hazard, and navigation guide, with its best estimate for completion; and
3. that the Trust confirm that it accepted the existence of the hazard and the lack of any navigation guide.

I decided that the Trust should also provide an update to other licence holders in the area.

Case No 816 – the Trust’s carrying out of the K&A Towpath Mooring Plan consultation in 2013

Organisation C, representing boaters on the Kennet & Avon Canal, was not satisfied with the way in which the Trust had carried out the consultation on the 12 month Towpath Mooring Plan (“the Plan”) for the K&A from Bath to Devizes in 2013. It listed a number of remedial actions it wanted the Trust to carry out:

A. address and provide a substantive, meaningful and genuine response to all of the points that Organisation C had raised in its complaint;
B/C. explain why so many K&A boaters had not received either a letter or an email about the consultation, and explain how it assessed who to contact, and how;
D/E/F. discuss the results of the consultation with K&A boaters and mutually agree a way forward, agree a time-scale for implementation, and produce a formal Towpath Mooring Plan incorporating the above agreements and the Equality Impact Assessment.

It asked me to require the Trust to take these actions. They were about answering questions which the organisation said had gone unanswered (A), providing explanations about the conduct of the consultation (B,C), and undertaking actions relating to the outcome of the consultation (D,E,F). It added two more in bringing the complaint to me, but as the complaint process had not included a proper discussion of these matters I did not consider them further.

Organisation C complained that the Trust had failed to carry out the consultation properly, that it had failed to meet relevant standards, that the questions did not accurately reflect the measures proposed, that questions were included about options already rejected, that some questions each comprised several questions, that some measures were proposed only at the time of the questionnaire, that some of the questions were simply statements of intent rather than genuinely seeking opinion, that no reasons were given for some of the proposals, and that the Trust had not taken reasonable steps to ensure that the consultation was brought to the attention of the relevant audience. The organisation had said that the Trust stated on its website that it followed the Government’s Code of Practice on Consultation (the Code), but it felt that the consultation failed to meet those standards.

It was also not satisfied with the Trust’s assertion that the Plan set lower requirements than the national guidance, and argued that in fact it imposed considerable additional requirements on boaters without home moorings (BWHM). It argued that specific requirements about movements had never been a requirement as the new guidance was not stated as law in section 17 of the British Waterways Act 1995.

The Trust pointed out that what it actually said was that it would always try to follow the Code for formal national consultations, but that even then it was under no obligation to do so. It added that although this was a local consultation it would always consult in good faith. On the matter of whether the Plan was to be voluntary, as Organisation C said had been proposed by the Waterways Partnership (WP), the Trust said that the WP had proposed that it would be. However, the Trust said that in its response to the consultation findings it was made clear that the plan was not voluntary, and that all boats in the local plan area would be required to follow the requirements, which it stressed were less stringent than its national guidance.

I did not consider that the Trust could be bound by the WP proposals, or prevented from deciding to make the pilot compulsory rather than voluntary.

On other issues I did not conclude that there was evidence of maladministration or unfair treatment. I did say that it may have been helpful had the Trust provided some further explanation about how its questions related to the WP’s proposals, but I did not conclude that it had entered into the consultation without an open mind. On whether consultation questions were ambiguous, or contained too many elements to enable consultees to respond meaningfully, I was satisfied that they could reasonably be regarded as coherent sets of single statements, some of which could not on their own be regarded as stand-alone questions. On whether the Plan requirements were less stringent than the national guidelines I said it was not my role to interpret the law, noting that the law is not specific on what boat movements would be acceptable.

I did agree with Organisation C’s argument that the Trust’s Sally Ash’s comments on the Trust’s actions in notifying boaters about the consultation, and what she regarded as the evident efficiency of the towpath telegraph, were inappropriate and dismissive. She had said that she could not accept that boats not listed as having received an invitation were unaware of it, noting that the consultation was open to all and publicised on the Trust’s website. I said that Ms Ash could not assume that the towpath telegraph was efficient, or conclude that it was acceptable to regard the towpath telegraph, or depend on it, as a means of disseminating information.

Organisation C had not argued that there were any boaters who did not hear about the consultation by some other means, in time to contribute, but I noted that for future consultations the Trust may wish to consider whether to work with representatives of stakeholder groups to ensure that people were not left out.

I said that on the issue of the national review, the complainant had provided no reason why the Trust, in a local consultation, should seek respondents’ views on whether it should carry out a national review.

Organisation C maintained that amendments relating to BWHM were being drafted by the Trust as late as April 2014, but it did not state what any changes were nor did it substantiate its claim that amendments were being drafted as late as 17 April 2014. The Trust said that the final Plan was published on 13 March 2014, and that there were no further changes after that date.

On the requested remedies, because it was necessary to get the Trust’s detailed comments to understand the points being made, I dealt with the first three (A-C) in my report. On remedies D-F, I said that even if I had found evidence of maladministration I could not see that anything would be gained by recommending that the Trust carry out such actions, because by the time the complaint had been brought to me over half of the pilot period had already elapsed.

Case No 798 – problems related to the granting of a trade mooring (see also Case No 751 below)

Mr B’s complaint was substantively the same as that of Mr A in case No 751. He had also been a moorer at the site but by the time I opened my investigation he had left. The Trust issued virtually identical second level responses (the second and final stage of its internal complaints process) to Mr A and Mr B, and my reports were also similar.

Case No 751 – problems related to the granting of a trade mooring (see also Case No 798 above)

Mr A had a boat at a long-term leisure mooring in Yorkshire. In 2012 the owners of a trade boat successfully applied for planning permission to sell drinks and snacks from their boat at the mooring. When Mr A first contacted me in 2013 he said that the owners had been serving alcoholic drinks from the boat, had erected a fence in an unsafe place, and were fitting out a new boat at the mooring. The situation became very difficult, opinions were polarised, arguments broke out, there were allegations of threats of violence, and the police were called out on several occasions.

The Local Planning Authority (LPA) considered that the planning permission had been stretched or breached, and felt that the Trust should take action as the landlord. Eventually the LPA revoked the planning permission, but although the owners of the boat appealed, the Trust decided to terminate the mooring agreement. The Trust and the owners were unable to find an acceptable resolution by which the latter could continue trading, and eventually the owners left the site by mutual agreement. The situation was unusual, and because of the complexities and the entrenched positions the Trust found it difficult to manage. It was also clear that despite some local opposition to the trade boat there were others who supported it, and it attracted a growing and supportive clientele.

The main problems, which were identified by the Trust, were that the planning application was imprecisely drafted and had not been sufficiently scrutinised, the mooring agreement was not adequate for the situation, and the Trust itself did not take action as promptly as it could have. As a result it modified its trade mooring application process, introduced a standard trader mooring agreement which would be subject to formal approval and sign-off procedures, and would as landlord require applicants to obtain its prior approval to any planning application.

In my investigation I accepted that the Trust had been faced with a very difficult and unusual situation. I was satisfied that it had recognised the nature of the problems and had taken adequate steps to prevent such a situation happening again, and to this extent I upheld the complaint, but I made no recommendations.

This is the complete list for the year

Case No 832 – overstay at visitor moorings and child safety issues

Ms N was denied permission to stay a further 12 hours on a visitor mooring, and had to move her boat, together with her three young children, without the assistance of her partner. She claimed that to have done so would have posed an unacceptable safety risk, and that the Trust should have offered her assistance. Given the number of boats, where they are young children, and where there is either a single parent or where one parent is temporarily absent, I took the view that the situation must have arisen before, and that there must be a significant element of parental responsibility. I also sought the view of an experienced boater who had brought up her child on her boat, and she explained that she had created a safe area on the boat. Ms N said that the Trust failed to take account of her circumstances, but I did not uphold this element of her complaint.

Ms N also regarded an email from an Enforcement Officer as amounting to harassment, but I considered that it was more by way of providing information and I did not uphold this element of the complaint. Ms N also questioned whether the Trust had the legal power to levy a charge for an overstay, but this is a matter of the Trust’s policy and is not an issue that I can consider.

Case No 831 – treatment of a disabled boater

Mr M is disabled. He lived on his boat on a private mooring on the Oxford Canal, where there were no sanitary facilities. He had been using the local Trust sanitary station, but this was locked after being vandalised. He complained that he had been paying licence and mooring fees to the Trust but was not getting a service, which he said resulted in him being forced out of his home. He also said that over a period of around six months he had had a poor response from the Trust to his concerns, which he perceived as an attack on him due to his disability. He felt that he should be offered compensation for the distress he has been caused, and a rebate of some of his fees, and also wanted serious consideration given by the Trust to creating a new Elsan facility nearby, as even the facility he had been using was still very difficult for him.

I considered what facilities Mr M was entitled to expect from the Trust by his payment of a licence fee and a mooring fee; whether, because of his disability, the Trust should have provided additional services, or should in any way have done more than it did do; and whether, since he first contacted the Trust in April 2014, it had dealt adequately with his concerns.

The Trust explained that payment of the licence fee did not guarantee the availability of sanitary facilities. The Trust should as far as possible maintain any facilities in an adequate state, but closures may be necessary. In this case it had to deal with a problem of vandalism.

The Trust did not own the mooring where Mr M moored, and had no obligation to provide facilities, explaining that it would be up to the landowner to decide whether to provide any. It did eventually provide Mr M with a key to the sanitary station, but only after about six months, and several failed attempts by Mr M to contact the Trust. By that time, Mr M had decided to give up on the idea of living afloat, and moved to a property in London.

In reviewing the correspondence I could see nothing which might suggest that the Trust might have acted in a discriminatory fashion; indeed what did come through was the lengths to which people had gone to assist him. However, I was persuaded that the Trust could have acted more quickly to provide Mr M with a key. At around the time that Mr M told me he had decided to leave the water, it was clear that the Trust was trying hard to resolve the problem, even if it did take longer than expected to provide him with a key.

As to whether the Trust should have created (or helped to create) a new Elsan facility, it explained that the cost would have been around £30,000, which may well not be regarded under the Equality Act 2010 as a reasonable adjustment. Whether or not the Trust had actually discriminated in any way is not a matter that I could decide.

The Trust did accept that it could have handled the situation better, and in addition to apologising to him it offered a goodwill award of £50 to reflect any distress and inconvenience. I concluded that this was a fair and reasonable resolution of the complaint and decided that the Trust should maintain its offer.

I did not agree with Mr M’s view that the Trust had effectively forced him off the water and should buy his boat off him. I also pointed out, in answer to his suggestion, that it was beyond my remit to require the Trust to completely overhaul its disability policy.

Case No 818 – Ribble Link closure

Ms L booked a crossing on the Ribble Link between the Lancaster Canal and the main network. While she was on the Lancaster Canal she learned that the Link had been closed because of low water levels. Given that she was due to return to work she had to leave the boat at a marina and return later to collect it. There is a risk of unexpected closures on the Link as a result of unforeseen circumstances, but in this case the Trust was aware that water levels were low and had undertaken a programme of weed clearance to increase the flow from Killington Reservoir, which was taking longer than anticipated. It also told Ms L that in hindsight it may have been more prudent to alert her to decreased water levels. My view was that the Trust seemed to have been aware of the situation and could reasonably have anticipated the problem. Ms L was claiming £225 in marina and travel costs to retrieve her boat later. I concluded that the costs were reasonable, and decided that the Trust should reimburse her costs in full.

Case No 806 – bollard electricity supply meter accuracy

Mr K said between October 2012 and May 2013 the electricity meter at his mooring (and also those of others at the moorings) had shown an unusually high, and incorrect, level of usage. During that period there had been flooding which had partially submerged the posts. The Trust did accept that the usage for the period was around double what would have been expected, but credited Mr K’s account with about £140 as a gesture of goodwill.

Given the lapse of time I concluded that it was unlikely that the true cause of the high metered usage could be ascertained. It did seem feasible to me submerging an electricity post in water may be expected to lead to some leakage and over-metering, but the Trust explained that not only would the meter have tripped, but that as the smart meter was the last item in the supply before the socket which supplies the boat, the meter would measure only the flow of electricity to the boat. Mr K could have had an independent assessment of the meter, but this would cost £80 unless the meter was shown to be outside a specified tolerance range.

The Trust said that in October 2014 all the cables in every bollard were raised up when electricians were on site carrying out work on a faulty bollard. This seemed a sensible precaution, but it was not clear whether it would have made a difference in the period in question.

Mr K had had his account credited and had therefore not lost out, and I made no recommendations. I explained that it was not the role of an Ombudsman to carry out an exhaustive analysis of any particular situation, especially in a case such as this where any further effort would have been unlikely to reveal anything more than was already known, but to make a decision on the basis of what is fair and reasonable in the circumstances.

Case No 801 – Foulridge tunnel incident and boat damage

Mr J entered the 1500 metre Foulridge tunnel on the Leeds and Liverpool canal on a green light. A short way into the tunnel he saw that a boat was coming the other way. He had to reverse out, and in doing so damaged his boat, causing damage which cost just under £100 to remedy. The other boat was a Trust workboat which was moving slowly. The Trust’s insurers argued that the Trust boat had sounded its horn repeatedly to make Mr J aware of its presence, and that there was therefore no negligence. I could not see why the Trust boat sounding its horn was relevant. I was satisfied that Mr J had reasonably entered the tunnel and that it was not his fault that he had to reverse out. I upheld this part of the complaint and decided that the Trust should compensate Mr J for the cost of remedying the damage to his boat.

Mr J also complained that the arrangements for passage times through the tunnel were inadequate, and had no faith that the Trust would implement the arrangements it had put in place to manage the tunnel passage times when large slow workboats are transiting the tunnel. After asking the Trust for further information I had no reason to share Mr J’s doubts and made no recommendations.

Case No 797 – surface water drainage charges

Mr I lives next to a canal. He does not have mains services for surface water drainage, and the Trust charges him for surface water drainage into the canal. His complaint was that the charge was significantly higher than that paid by his neighbours who do have the benefit of mains drainage, and that VAT at 20% is levied on the charge. Unlike the water utility companies, the Trust is not a regulated organisation. Its charges are therefore not controlled, and they are not a matter that I can consider. The Trust is also obliged to levy VAT on its charges. I did not uphold the complaint.

Case No 792 - canal infrastructure, culverts and flood risk

Mr H lives in an area near the Leeds and Liverpool Canal, where there has previously been flooding as a result of severe weather. In the location in question a brook runs under the canal, through three sections of pipes and culverts, the second and third sections being owned by the Trust. The second section is a single circular cross-section pipe with a diameter of 900mm. For the purposes of this complaint the Trust has two responsibilities; one is to provide the local authority with information which it needs to carry out its duties as the Lead Local Flood Authority (LLFA), while the other is a duty, as what is known as a Statutory Consultee, to provide relevant information in connection with planning applications.

In this case the Trust had provided information requested by a firm of consulting engineers in connection with an application for a development near the brook on the upstream side of the canal. In this case the Trust stated that the diameter of the middle section pipe was not 900mm but 675mm. The information is on record as part of the planning application and has not been corrected. Mr H’s complaint was that the risk of local flooding is exacerbated by the poor state of the Trust’s infrastructure, and that the existence of this incorrect information means that the neighbourhood is being subject to unnecessary risks.

My rules require me to consider complaints of injustice suffered as a result of maladministration or unfair treatment. I accepted that the information submitted in respect of the planning application was incorrect, but I could see no way in which it could possibly have any impact on the likelihood of flooding. There was no pre-existing issue about the capacity of the pipe to carry the brook, and the developers stated that any problems of water run-off from the location would be reduced by the development. The Trust stressed that the information it provided to the LLFA was accurate in respect of the diameter of the pipe, so the incorrect information was not used for flood management. I concluded that no useful purpose would be served by the Trust correcting the information, and I did not uphold this part of the complaint.

In respect of Mr H’s complaint that the Trust’s infrastructure was in a poor state and exacerbated the risks of local flooding, it was not my role to establish the state of the infrastructure or the flood risk. The assessment of that risk is the responsibility of the LLFA and not the Trust, but the Trust is required to provide information to the LLFA. I saw no evidence of any maladministration in the way that the Trust was monitoring its assets, and I did not uphold this part of the complaint.

Case No 779 – safety and other issues at mooring

Mr and Mrs G have a boat on a permanent mooring on a canal. Because of a long-running dispute between other boaters at the mooring, Mr and Mrs G wanted to be moved to another mooring, but when one became vacant they were not allowed to move. They also complained that Trust staff had discriminated against them because they owned several dogs. Finally, they complained about safety issues at the mooring, in particular that Mrs G had had a fall which she said was as a result of poor lighting and uneven surfaces.

On the issue about a move to an alternative mooring, the Trust had offered a move to two sites, but by time the complaint came to me the deadline for acceptance had passed. Mr and Mrs G did not tell me whether they had regarded the offer as acceptable. I did not recommend that the Trust make further offers of alternative moorings, but I did recommend that it write to Mr and Mrs G to explain their options are about moving or staying, including for example whether they could have a mooring without having to go through the auction process, what the financial terms might be, and what was currently available or might soon be available.

In respect of the ownership of the dogs, the Trust had written to Mr and Mrs G, pointing that it had been brought to their attention that had several dogs. The Trust said that they would not normally expect such a large number, and asked for them to be kept under control at all times. I did visit the mooring, and saw no evidence of unacceptable behaviour by the dogs, but as far as I was aware no complaint had been received. While Mr and Mrs G regarded the Trust’s comments as unacceptable, it did not seem to me that on an objective basis they could be regarded as being so. Nonetheless, to the extent that any apology was dues I was satisfied that the Trust had done so fully and properly, and made no further recommendation.

On the safety issues, Mrs G had injured herself in a fall, which she said was because of a lack of lighting. The Trust said that the view of its health and safety advisor the site was not unsafe, but it had agreed some rectification works which would be undertaken in the ensuing few weeks. I did comment that the Trust’s proposed work could be regarded as indicating that things were not right before. Mrs G had not asked for compensation for her injury, but I did recommend that it apologise for the delay in carrying out the work.

Case No 772 – compensation for refloating boat

Mr F is an experienced sailor. He owns a sailing boat with a bilge keel, which he has for several years kept on a permanent mooring in a marina at the end of a canal, with a lock to a tidal river. During one night his boat sank. Mr F maintained that the cause was a water level drop and that the keel had probably caught on the side of the lock. His view was supported by the marina manager, who said that the Trust reserved the right to drop the water level without notice to alleviate potential flooding. Mr F incurred costs of around £700 to raise and clean the boat, which included travel and accommodation while he was doing the work. The Trust has a SCADA (supervisory control and data acquisition) system which monitors water at regular intervals at a number of locations. The Trust’s view was that its data did not show a water level drop of the scale that would have been likely to cause the sinking, and I was satisfied that vandalism was probably not the cause. The evidence from the parties was hard to reconcile; either the boat sank with no apparent cause, or the SCADA data was inaccurate or sufficiently detailed to show a transient water level drop. In view of the absence of clear evidence I decided that the Trust should make an award of £350, being half of the costs which Mr F incurred.

Case No 770 – Section 8 notice and continuous cruising requirements

Mr E lives on his boat. He does have a permanent mooring but he prefers not to use it and instead moors most of the time at the visitor moorings in a nearby town. The Trust was not satisfied that his boat movements were sufficient to satisfy the boat licence conditions. It also had doubts about the home mooring and whether it was genuine, and eventually started to take action under section 8 of the British Waterways Act 1983 on the basis that his boat was moored without lawful authority.

A key issue in this case was whether the rules on continuous cruising applied to those who do have a home mooring when they are away from it. Mr E’s view was that the rules for those declaring a home mooring, and those not, are fundamentally different. He argued that having a home mooring exempted him from the requirement to continuously cruise, noting that s.17(3)(c)(i) of the British Waterways Act 1995 did not refer to the need to use the vessel for navigation.

If Mr E is correct it could lead to a situation where boaters could obtain a low-cost mooring in one place, perhaps not even intending to visit it, and then stay in a locality of their choice. The Trust’s licence conditions refer to mooring only for short periods while cruising, and its view is that if boats do have a home mooring, then while they are away cruising there should be a range of movement commensurate with the time they spend away from that mooring. It is not my role to interpret the law or to decide whether the Trust has interpreted the law correctly. I can consider whether it has implemented its own policies correctly. I had no reason to think that it had not, and I did not uphold the complaint.

Case No 766 – inappropriate issue of an Enforcement Notice

During January 2014 the Trust issued Mr D with three Enforcement Notices (“ENs”). Mr D accepted one, and the Trust expunged a second on the basis that it should not have been issued in the first place. The third was a request for Mr D to remove his mooring pins from the concrete and his mooring lines from the safety chain, and he wanted this EN to be expunged.

The Trust explained that the EN was part of a local campaign to encourage boaters not to damage towpaths and canal banks by driving mooring pins into hard surfaces such as concrete or tarmac. Mr D insisted that he had placed his mooring pin in an existing hole, and that his mooring line was attached not to the safety chain but to the metal eye bolt the screws into the concrete, but the Trust’s view was that its Enforcement team was right to issue the notice in an attempt to protect important canal infrastructure from further damage.

Mr D did accept that his mooring pin was in the hard towpath surface, but said that he had used a hole made by previous boaters. The EN did not impose a penalty, nor would it contribute to any possible enforcement action. The Trust said that the EN was simply a polite request for Mr D to remove his mooring pin from the hard surface. The EN has a number of boxes which can be ticked to show why it was issued. None was ticked, but in the “other” free text section there was a request to remove the mooring pins from the concrete and the mooring line from the safety chain.

I accepted the Trust’s argument that the EN was issued primarily as a polite request, and I did not recommend that the Trust expunge it.

Case No 764 – negotiations for extension of property lease

Mr C owns a property in Islington, which was on a 125 year lease which started in September 1969. The freehold was owned by British Waterways (“BW”). In June 2012 Mr C enquired with BW about extending the lease. Section 39 of the Leasehold Reform, Housing and Urban Development Act 1993 (“the Act”) grants a tenant the right to “acquire a new lease of the flat on payment of a premium determined in accordance with this Chapter.” In essence the tenant has the right to extend the lease on a property for 90 years, subject to having been an owner for two years.

When Mr C contacted BW about extending the lease it had just over 82 years to run. The cost of extending the lease increases as time passes, but there is a crucial point cut-off point, when the lease has run down to 80 years, after which the cost increases significantly. The cost of extending the lease is based on the duration of the unexpired portion as well as the value at the time it is extended. The payment is intended to reflect the fact that the freeholder loses ground rent, and the time before the freeholder gets the property back at the end of the lease is extended.

At the time Mr C enquired about extending the lease, BW was in discussion with Islington Borough Council about selling the freeholds, and this led to delays in BW responding to Mr C. He wanted compensation for any additional costs of extending the lease, arising from BW’s delays. I was satisfied that BW had been slow in responding to Mr C, but there were also delays on Mr C’s part. I contacted the Leasehold Advisory Service (“LAS”), who explained to me that discussions could be formal or informal, but that there was an onus on the leaseholder to take action, for example where the freeholder could not be contacted. In this case the tenant can submit a request on a statutory basis, and it is the timing of that request which determines the calculation of the costs of extending the lease, even if the agreement is not actually concluded until after the remaining lease has fallen below 80 years. If the two parties cannot agree the cost of extending the lease it can be assessed by a Leasehold Valuation Tribunal.

Although Mr C could have instructed a solicitor at the start, and submitted a request on a statutory basis, there was no clear need to do so as there was no reason for him to believe that this was necessary. I was satisfied that there were delays on the Trust’s part, but also on Mr C’s part. Using an LAS calculator, I concluded that as a result of a delay of a year Mr C might have had to pay a further £550 to extend the lease, although the figures I used were estimates. Given that there were also delays on Mr C’s part, and that he could have sought legal advice earlier, I decided that the Trust should make an award of £150 in compensation.

Case No 759 – provision of outdated information for marina planning application

Mr B is the representative of a marina. A separate company made a planning application for a new marina a few miles away. The Trust is a Statutory Consultee (“SC”) for such planning applications, which means that it must be consulted by the Local Authority (“LA”). It made a submission as an SC, but its New Marinas Unit (“NMU”) also wrote to the LA, in which it said that it supported the proposed development. In that letter it referred to a 2005 forecast of the numbers of moorings which would be needed by 2015, based on a growth rate of 4%. It said that the economic climate would impact on the percentage growth either up or down but that the overall trend since 1992 showed an increase in boat numbers. It added that it would be happy to provide further information about economic demand to assess the impact of the proposed development, and traffic generation from marina developments. Mr B argued that the figures were out of date and did not reflect the current situation, which had been affected by the economic downturn.

The planning application was rejected for reasons related to conservation and heritage issues, and the cumulative impact of local marina developments, and because of a potential adverse impact on an archaeological site of interest. The developers submitted an appeal.

Mr B’s view was that there was an oversupply of moorings in the area, and that the new berths would not be filled. He said that the Trust had misinformed the LA about the need for a new marina, and that it should inform the Planning Inspectorate of what he said was the true position, and correct what he said was the thoroughly inaccurate and misleading statements made by the NMU on the issue of need. His concern was that if the Planning Inspector were to consider the application afresh then the letter from the Trust’s NMU may be significant if the original reasons for refusing planning permission were overturned.

One of the key issues I considered was that of supply and demand, and whether this was taken into account. If the area was in Green Belt then local demand, for example for residential accommodation, may be taken into account, but it is not. Both parties made points about competition, with the Trust saying that it could reasonably refuse access to the canal network to a new marina. However, I did not think that that meant that the Trust should positively support a proposed marina development, as it did in this case, and there are good reasons why it should be entirely neutral.

However, marina operators, both existing and potential, operate in a commercial environment where there is wide availability of information about supply and demand. I said that it was up to them to assess whether there was an unsatisfied demand for additional mooring capacity.

It was not clear why the Trust’s NMU decided to positively support the application, rather than restricting its comments to those of a SC, but following an internal review it decided that it would in future submit only one response, in its role as SC, about whether it objects or does not object to the proposal. I said that the evidence provided to me indicated that the matter of supply and demand was not a relevant issue outside Green Belt.

In my conclusions I said that:

• I could not reasonably conclude that the Trust deliberately misinformed the Council about the need for the marina;
• the Trust did not make it clear to the LA that the information it supplied in its letter was out of date, but given that the data was seven years old it would have been helpful had it indicated that it did not know what the current situation was;
• I did not conclude that the Trust knowingly supplied information that was false;
• even though the information supplied to the LPA by the Trust in its 14 December 2012 letter was out of date, I could not conclude that this would have had a direct and material effect on the outcome of the planning application (absent the two reasons for the refusal of planning permission), on the likelihood of an appeal being made, or on the outcome of the appeal;
• I did not consider that the Trust should withdraw its 14 December 2012 letter and submit a new one, but I noted that if the Trust wished to do so it was a matter for it to decide;
• as the LA did not approve the planning application I did not conclude that Mr B had suffered any injustice in respects of his commercial interests. I said that the LA was not a market regulator and did not consider supply and demand issues outside Green Belt. I also said that given the commercial nature of the market, it could be argued that if Mr B might have suffered, it would have been as a result of the normal operation of the market.

I upheld the complaint in part, because of my view that the Trust should, in its letter of 14 December 2012, have provided a clearer explanation of the context of the information which it provided about the availability of mooring berths. However, in view of the fact that the Trust had decided in future to submit only one letter, in its capacity as a Statutory Consultee, and because I could find no evidence of injustice suffered as a consequence of its actions, I made no recommendations.

Case No 737 – failure of the Trust to deal effectively with leaks from canal

Mr A runs a farming business adjacent to the Oxford Canal. There had been leaks from the canal into his lower-lying land. He had had difficulty in getting the Trust to respond to his requests for the leaks to be repaired. His view was that the process for reporting problems and getting them rectified was unsatisfactory and did not work.

The Trust did accept that there had been failings in dealing with the leaks, and that it had made commitments, some of which it had not kept. It accepted that communication could have been better, and that only realistic timescales should have been given for dealing with the leaks. It stated that the timescale for actually completing repairs would depend on the severity of the problem and the prevailing conditions at that time, but that in extreme circumstances, such as those caused by bad weather, it had to prioritise the works according to available resources, and could not provide fixed timescales in advance to repair unspecified problems.

While it was handling Mr A’s complaint the Trust proposed a process, which included the handling of communications, and the timescales for it to respond to notifications about problems. Mr A pointed out that the process was the one he had followed many times before, but that it had never worked. I did not think that a remedy of simply trusting that the process would work in future was acceptable, and in discussion with the Trust agreed that there would be a fail-safe mechanism whereby the Trust’s main Customer Services team was alerted if the process went off track. I thought this was not ideal because it should not be necessary, but it would have the virtue of giving Mr A some assurance that the process will work.

I decided that in the event that Mr A needed to invoke the problem reporting process, then should it fail he may contact a named person in the Trust’s Customer Service team, who would raise the matter with the Trust’s Operations Director. I decided that this facility should be available for a period of 12 months from the first time that Mr A needed to invoke the process.

This is the complete list for the year

Case No 762 – Mile End Floating Market July and August 2012

Mr Q complained about the lack of facilities at the market, and that he had suffered a loss because of the lack of availability of water, because of inadequate mooring facilities, and because of the lack of accurate and timely publicity. He also argued that because he had not signed the mooring contract, no such contract existed.

I was satisfied that even though Mr Q may not have signed the contract, it could be deemed to exist, and indeed that if it did not the rest of his complaint would fall. The Trust had admitted that the facilities were not as he could reasonably have expected, and had offered a reduction in mooring fee from £582.35 to £360, which was the level for a non-trade mooring. In my view the Trust’s offer was fair and reasonable and I concluded that it should maintain it.

Case No 745 – loss of prompt payment discount

The licence on Mr P’s boat became due for renewal on 1 April 2012. He said he had not received the renewal notice in time to benefit from the discount. He also complained about the lack of availability of contractual documentation, the Trust’s website management, and its complaint handling, as well as loss of use of the canals while he was trying to renew his licence.

Mr P’s view was that it was up to the Trust to ensure that customers received renewal reminders on time. The Trust said that the renewal letter was generated and printed on 15 February 2012, but that in view of the volume of letters it sent out it did not keep a certificate of posting. Given that Mr P had had a boat for some years, I saw no reason why he should not have been aware of the impending deadline, and take action if he received no renewal. Although he said that website information was difficult to find, I found it quite easy to locate. When he did try to renew online, Mr P experienced difficulties, but by that time he would not have been able to benefit from the discount.

In respect of Mr P’s argument that he temporarily lost the use of the canals, I doubted that in this situation the Trust would have applied sanctions, especially if he had let the Trust know beforehand, and I did not accept that he had suffered any injustice or material detriment.

I did not uphold the complaint, but in response to a request from Mr P after I had concluded my investigation, that the Trust consider referring on its renewal form to where the terms and conditions could be found, the Trust agreed to do so.

Case No 742 – marina sanitary facilities

Mrs O had a long-term mooring at a marina. She complained about what she referred to as the filthy conditions of the showers, saying that she had made many phone calls to the Trust but without success. She had asked for £1,400, comprising £800 for full reimbursement of her mooring fees for a period of 21 months, £100 for sundry expenses, and £500 compensation for stress and inconvenience, as well as an apology.

The Trust agreed that the state of the shower trays was unacceptable, and that they would be properly cleaned and probably replaced after a survey. Mrs O did not think that the trays needed replacing, but my view was that it is up to the Trust to decide what to do with its own property. I upheld the complaint in part, and decided that the Trust should make an award of £125 to reflect the stress and inconvenience, as well as any costs she may have incurred. I recognised that this was a fairly modest award, but said that it did take into account the fact that Mrs O had been abusive to Trust staff.

Case No 738 – Mile End Floating Market July and August 2012

Ms N had paid for a permit to moor at the 2012 Olympic floating market, and operate a catering business from her boat, but said that the Trust had breached its terms and conditions by not providing a water tap and other services. In her view she was not liable to pay for the permit, and she had refused an initial offer by the Trust of £100 as a goodwill gesture. In her complaint Ms N said that among matters there had been a lack of promotion of the event, a lack of media presence, poor waste disposal facilities and poor water availability.

The terms and conditions of the permit did not specify the level of media presence or promotional activity so I could not consider these issues. There was also no evidence that she had raised with the Trust the matter of waste disposal, so again I could not consider it. The terms and conditions stated that the Trust would not be liable for the failure of any utility, which I interpreted as including water even though it was not specifically mentioned. Although water was available it was at some distance and difficult to access, and in any case unless the water tap was located next to her boat Ms N would have had to collect water or move her boat.

The Trust accepted that the situation was not ideal, but Ms N has not provided evidence that it had a detrimental impact on her business. The Trust later increased its offer, to reducing the mooring fee by £172, from £532 to £360, bringing it into line with the non-trade mooring fee. Although I requested it, Ms N did not provide evidence that any losses may have exceeded £172, and in any case the terms and conditions did not cover liability for loss of business, or consequential losses from failure to perform the contract. Legally, the Trust was not obliged to make any offer of payment, but did so on a goodwill basis. In my view the Trust’s offer was fair and reasonable and I concluded that it should maintain it.

Case No 724 – car parking permits at a marina

Mr M moored his boat at a marina with a car park. Until 2012 use of the car park had been free but a private company took it over and converted it to pay and display. Moorers who had been customers since 2008 were issued with two free parking permits, but others received only one. Mr M felt that in being given only one free permit he had been treated unfairly.

The Trust said that some long-standing moorers did have permission to park two cars prior to the introduction of the current pay and display system, and that it was judged that to have removed this permission would have been unfair. It added that the auction description for the moorings did not include free parking.

Whatever the Trust did was likely to have been viewed by some as unfair. I was satisfied that there was an objective basis for the different allocation of free permits depending on how long moorers had been there, and I did not uphold the complaint.

Case No 722 – Trust misrepresentation of a boaters’ organisation

Mr K, on behalf of Organisation L, representing boaters without home moorings (BWHM), complained that the Trust had published statements which had contained allegations and inaccuracies about the organisation, as a result of which it had suffered injustice, and that continuous cruisers had been discouraged from becoming members. The statements were included in the Trust Council Meeting briefing paper of 27 September 2012 on non-compliant continuous cruising, and the Trust document “Towpath Mooring – Q&As”.

There were six issues in the complaint. In the first, in respect of the Trust’s statement in the Q&As that Organisation L had argued passionately that it was a basic human right to live on a boat without any restriction on mooring, Mr K said that the organisation had never argued this. I upheld this element of the complaint, and recommended that the Trust publish a correction.

In the second and third issues, again in respect of the Q&As, the Trust had stated that the High Court had conducted two hearings of the organisation’s application for judicial review of its interpretation of the relevant legislation on continuous cruising. The Trust went on to say that it had no reason to think that the appeal would change anything. Mr K pointed out, first, that it was he and not the organisation who had brought the action in a personal capacity, and second that to predict that the appeal would fail was a further attempt to discourage boaters from becoming involved with the organisation. I upheld these two elements of the complaint, and recommended that the Trust published corrections.

In the fourth issue, also in respect of the Q&As, the Trust referred to Organisation L as being “relatively new and small”. Mr K argued that to make such an allegation was a further attempt to discredit it and to discourage boat dwellers from becoming involved. I regarded the statement as objectively justifiable and I did not uphold this element of the complaint.

In the fifth issue, the Trust briefing paper referred to Organisation L as having rejected the Trust’s interpretation of the legislation, and as believing that any boater had a right to settle on the towpath within a specific area without the need to secure a home mooring. It added that the Trust’s attempts at constructive engagement with the organisation on such matters had largely failed. Mr K said that the organisation had never argued in favour of an unconstrained right to settle, and that the Trust had made no attempts at constructive engagement with the organisation. He added that the statement that such attempts had failed further compounded the injustice to the organisation. I noted in my report that the relationship between Organisation L and the Trust seemed frequently to be difficult, and also that the organisation had used various channels, such as the courts, and FoIA requests, in dealing with the Trust, but also noted that there had recently seemed to be an improvement in dialogue. I did not uphold this element of the complaint.

In the sixth and final issue, the Trust briefing paper had stated that Organisation L’s activities included such issues as campaigning against the Trust’s mooring policies on niche websites and Internet groups, submitting successive complaints and FoIA requests, and providing support to boaters within the Trust’s enforcement process for failing to demonstrate compliance with mooring guidance. Mr K argued that they were all legitimate activities. I could find nothing in the Trust’s statements that suggested that it regarded such activities as not being legitimate, but I did accept Mr K’s point that Organisation L had never in its own capacity made an FoIA request, even if some of its members had. I upheld this element of the complaint in part, and recommended that the Trust publish a correction.

Case No 719 – smoke from boats moored outside apartment

Mr J lives in an apartment at the side of the Regent’s canal. While there had not previously been problems, the erection of new buildings on the other side of the canal had created a canyon effect, meaning that emissions from canal boats came in through open windows, which gave him and his family headaches. He said that there was also noise pollution.

The Trust explained that the powers of it and the local authority to deal with the problems were very limited and that in practice enforcement was difficult. It proposed a number of measures to alleviate the problems, including the issuing of patrol notices about smoke nuisance, the putting up of signs, investigating whether moorings rings could be installed nearby to encourage mooring elsewhere, and writing to Mr J to explain what he could do when a particular problem occurred.

Mr J suggested that the moorings could be de-designated, but the Trust did not wish to do so, and as this was a policy matter I could not require it to take such a measure. I did accept that Mr J’s situation was very difficult, but there was nothing significant that I could do that would prevent the problem occurring in the first place. I recommended that the Trust take the steps it had already proposed, and also to write to him to explain why it could not de-designate the moorings.

Case No 713 – poor customer service from the Trust following an accident

Mrs H has a boat which at the time of the events giving rise to this complaint was on the Kennet & Avon Canal. She does not declare a home mooring and therefore licenses her boat on the basis of continuously cruising. She explained that she had an accident in December 2012 which, while not serious, meant that she had to remain in a particular location for two to three weeks, which would have meant her overstaying beyond the 14 days permitted. Mrs H said that in discussions with the Trust, a staff member had behaved unprofessionally and inappropriately.

The complaint seemed to me to be at least partly about perception of attitudes. There were references in the Trust’s evidence to Mrs H overstaying on previous occasions, or moving insufficient distances. It may have been that what the Trust regarded as statements of fact, Mrs H may have regarded as threatening and bullying language. I accepted that Mrs H may have felt bullied, but it did seem to me that discussions had been coloured by previous events and that a conversation may not have developed as it did had Mrs H had a flawless record of moving her boat. There did appear to have been scope for the Trust member of staff to handle things better, but the Trust had apologised and did not consider further action necessary.

Case No 710 – rubbish in the River Soar at Thurmaston

Mr G said that the Trust was failing to keep the river clean, and that rubbish, including traffic cones, furniture and logs had accumulated at a weir. He felt that there should be a grid under the nearby foot to catch the rubbish. While the Trust had said that a grid would cause the river to flood, Mr G said that it flooded anyway.

The Trust accepted that there was a genuine problem but that it did not have the resources to remove all the rubbish. It had created links with other organisations, and had also created volunteer groups, in the area to try to stop the problem happening in the first place, but stressed that it would not happen overnight. The Trust said that there were no grilles at other weirs, and did not consider that this was a solution to this particular problem. I concluded that the Trust was already doing as much as it could and that there were limits to what it could do. I did not uphold the complaint.

Case No 709 – the Trust’s seizure of a boat

Mr F owns a property next to the Kennet & Avon Canal on the offside, adjacent to a lock. He owns a boat, which he moored outside the property on what he said was a historic mooring. The Trust removed the boat under section 8 of the British Waterways Act 1983, and in doing so broke a padlock to gain entry to it. He made a large number of points in his complaint, most of which I could not consider either because they were matters of policy or because they had already been considered in previous complaints. The issues which I did investigate were whether the Trust’s entry to the boat was unlawful, and whether its policy for entering boats was set out in any corporate documents.

Mr F argued that there was no lawful authority permitting the Trust to break into boats during the course a section 8 removal, and maintained that it should have given him 24 hours’ notice. The Trust was satisfied that there had to be an implied right to use forcible entry, in order to give proper effect to the legislation. Mr F pointed out that s.7(2)(b)(i) of the 1983 Act made it clear that the Trust may enter a boat only with 24 hours’ notice, but the Act states that the giving of such notice is in accordance with s.7(2) of the Act, and the boat was impounded under section 8. I could not reasonably conclude that the Trust had unlawfully entered Mr F’s boat, and I did not uphold this part of the complaint.

In respect of whether there were any documents setting out the Trust’s policy for entering boats, the Trust said that there were not. Even if any information had not been available it did not seem to me that events would have taken a different course, and noted that at the point where such information became important matters were likely to have already reached an advanced stage. I did not uphold this part of the complaint.

Case No 702 – trading from moorings on the Macclesfield Canal

Ms E wished to trade from moorings on the Macclesfield Canal. While she had been offered locations at certain points, she regarded these as unsatisfactory for various reasons. She felt that she had been treated unfairly and inconsistently in comparison with other trade boats, and said that she had had difficulties in dealing with the Trust. She pointed out that there was space at the end of the long term leisure moorings and saw no reason why she could not trade from there, adding that occupancy of the moorings was low.

The Trust explained that Ms E had a business licence for her boat to operate on a roving basis, and that although she had a home mooring she was not permitted to trade from it. It was not prepared to allow her to trade from the long term moorings.

I could consider only whether there may have been maladministration in the way that the Trust had dealt with Ms E, even if there was a suggestion or indeed evidence that it may not have been enforcing its terms and conditions in respect of other trade boats. The Trust is not obliged to allow trading from leisure moorings. This is a policy matter, which I cannot influence, and on this issue I found no evidence of maladministration. As to the allegation of inconsistency and unfair treatment, there did appear to be some evidence, but the Trust said that it would consider what to do about the other traders. I did not uphold the complaint, but I did recommend that the Trust explain to Ms E whether the current low level of occupancy of the long term moorings may be likely to affect its decision not to allow her to trade from there.

Case No 700 – assistance to a boater following a canal breach

As a result of breach on the Trent and Mersey Canal at Dutton at the end of September 2012 Mr D was unable to return directly to his home mooring on the Bridgewater Canal at Runcorn. He said that the only route home for which the Trust was willing to provide assistance was by joining a convoy travelling west on the Manchester Ship Canal to Ellesmere Port, but which entailed a long and circuitous route of nearly 100 miles with 108 locks. He was willing to travel east on the Manchester Ship Canal and then transfer to the Bridgewater Canal to return to his home mooring. He said that the Trust did not assist him, but that by his own perseverance he did eventually manage to travel on his preferred route. Mr D wanted the Trust to reimburse his additional fees for using the Manchester Ship Canal, of £138.

The Trust explained that the breach affected around 500 boats, 50 of which needed to be moved to other parts of the network. It pointed out that it was an emergency situation and that it had concentrated its resources on the route favoured by most boaters, via Ellesmere Port. It added that under its terms and conditions it had no statutory obligation to keep the waterways open at all times, and that its licence fees reflected this fact. The Trust had reimbursed the £28 Manchester Ship Canal fees payable by those travelling via Ellesmere Port, and offered the same amount to Mr D, plus a goodwill payment of £50.

I had no reason not to accept in good faith Mr D’s comments that the Trust had made it difficult for him to use his referred route, which involved such matters as getting a seaworthiness certificate, and it did seem to me that the Trust may have provided less assistance to him than to other boaters. The Trust was not obliged to reimburse Mr D his full Manchester Ship Canal transit fee, and I decided that its offer of a payment of £28 was fair and reasonable. However, I did accept Mr D’s argument that the Trust had not been as helpful as it could have been, and recommended that it increase its goodwill award from £50 to £100, bringing the total award to £128. In doing so I upheld the complaint in part.

Case No 687 – renewal of boat licence

Ms C’s boat licence was due to expire at the end of August 2012, but she did not receive renewal paperwork. She did not need a licence for her boat at its usual mooring in London, but had one for when she went cruising on other waterways. There was some confusion about the status of her mooring, and whether it could be regarded as a home mooring, and therefore whether she was to be regarded as a continuous cruiser. In the delays arising from the confusion, her boat was for a period not licensed, and she said that because of the risk of enforcement proceedings being taken in this period she was unable to go on trips up the Grand Union Canal.

The Trust explained that in light of a court case it became aware of inaccuracies about the information it held for Ms C’s boat, in that it had incorrectly recorded the boat as a continuous cruiser, and had placed a block on the account which meant that Ms C did not receive a reminder. It wanted confirmation that the boat still had a home mooring before it would process the application, but Ms C said that all the Trust required was confirmation that she still held the same mooring which had formed the basis of her application, and did not see why she needed to complete a new application.

I could find no reason why the Trust may not have a legitimate reason for being confused about the status of Ms C’s mooring, and I could see no ulterior motive in it wanting to consider the matter in more detail. In respect of whether Ms C had a legitimate concern about the Trust taking enforcement action had she taken her unlicensed boat cruising on the Grand Union Canal, the Trust told me that it would not have impounded the boat or impeded its movement without issuing a statutory 28 day notice. It seemed to me that Ms C had a good understanding of the waterways, and I could not reasonably conclude that any fears she may have had about enforcement action were justified. The Trust said that Ms C had not indicated a sense of urgency in renewing the licence, and the only evidence that she provided to me that she had notified the Trust about her wish to go on holiday was in an email to Trust after the holiday had been cancelled.

The Trust did accept that there were some shortcomings in its process, and had already apologised. Other than that, I could find no evidence of maladministration. In my view it was Ms C’s decision to cancel the holiday, and I did not uphold the complaint.

Case No 679 – the Trust’s interests in an organisation representing commercial boat hire companies, and Trust staff involvement in the organisation

Mr B, on behalf of an organisation representing boaters without home moorings (BWHM, also known as continuous cruisers), complained that the Trust’s interests in, and involvement with, the organisation representing boat hire companies amounted to maladministration and led to potential injustice to BWHM. The approach I adopted was to consider whether there had been any detriment, and if so whether this was the result of the alleged maladministration.

Mr B argued, among other matters, that the interests amounted to conflicts of interest, that they led to benefits to the Trust in terms of indirect revenue and political influence, and that the Trust had given preference to hire boat companies over and above other boaters.

In terms of detriment and injustice, Mr B said that targeted action by the Trust against BWHM was disproportionate in comparison with their numbers. He said that there was evidence showing that boat hire companies were calling for stricter enforcement against BWHM and for increases in BWHM licence fees. In Mr B’s view the total number of BWHM boats, taken across the whole network, meant that there was not a problem.

Mr B also referred to the Trust Council Briefing paper of 27 September 2012, on Non-Compliant Continuous Cruising (NCCC), which he said among other measures proposed a policy of breaking up BWHM communities. He said that that the briefing took up many of the measures put forward in trade meetings. He noted that the document created the impression that the Trust did not already have sufficient powers to control towpath mooring.

I pointed out that the organisation on behalf of which Mr B submitted the complaint did not comprise all BWHM, so I could not consider whether there had been any detriment to BWHM who were not its members. I accepted that there may be some detriment to BWHM, but noted that the Trust had for many years had a policy on continuous cruising, and was now seeking to increase its level of enforcement. I did not accept that any potential detriment or unfairness was the result of any maladministration or unfairness, as much as the enforcement of the Trust’s policies.

I added that it seemed unlikely that the alleged maladministration may have been likely to influence the way that the Trust applied its rules and policies. Although Mr B provided many examples of what he considered to be detrimental effects, it did not seem to me that there was a clear connection between the alleged maladministration and any detriment. I did note that it was theoretically possible that the alleged maladministration had had a pervasive effect on the implementation of the Trust’s policies, but that no immediate connection was visible. I added that the policies had been, and could be, tested in the courts. I did not uphold the complaint.

Case No 670 – refusal of a mooring

Mr A bought a business in a town centre, and wanted a permanent mooring a few yards away on the adjacent canal. He said that he was given conflicting information about whether or not the mooring was included as part of the building lease, but that in any case he signed the building lease in February 2011 on the basis of his understanding that he would be able to have the mooring.

It was clear from the evidence that Mr A was provided with conflicting information; indeed even during the Trust’s complaints process it initially supported the decision not to grant a mooring, then reversed the decision only to reverse it again. It was clear that there was not universal agreement within the Trust about whether Mr A should be able to have the mooring. Mr A argued that although there may have been problems with the mooring and the water depth, he regarded it as satisfactory and said that the Trust had permitted such moorings in other locations. The situation was further complicated by the fact that the mooring had been used by a Trust boat, and also that there appeared to be strong and opposing local interest in Mr A having the mooring. At best, therefore, there was uncertainty when Mr A signed the lease that he would be able to have the mooring, and the Trust eventually decided on practical and policy grounds not to allow him to have the mooring.

I concluded that the Trust had failed to deal adequately with the situation, in particular that it had twice changed its mind during the complaints process and had previously provided conflicting information. However, what was clear was that at the time Mr A signed the building lease there was no guarantee that he would get the mooring, and indeed over two months before he did so he was told that he would not be able to have it.

I did not consider that the Trust should allow Mr A to have the mooring, but I did conclude that there had been maladministration in the way that it had dealt both with the issue of the mooring and the handling of the complaint. I therefore upheld the complaint in part, and recommended that the Trust make a further apology to Mr A and make a compensation payment of £150.

This is the complete list for the year

During the year the previous Ombudsman (Hilary Bainbridge) retired and was replaced by the current one (Andrew Walker). Those cases completed by Hilary Bainbridge are indicated with her initials in the case heading line.

Case No 696 – unauthorised fishing

Mr N’s house and garden back onto a towpath at a wharf in a town. He complained about anti-social behaviour and ignoring of the fishing ban by youths, particularly in school holidays. Although the Trust said that it did not have the resources to deal with such situations where there was public access, Mr N’s view was that that it could not ignore the Government’s anti-social behaviour legislation, and regarded the Trust’s approach as complacent. The Trust had offered to work with the police and local authority, and to examine whether there was any scope for the local angling club to take over the fishing rights in the wharf. I did not find evidence of maladministration, but in to try to achieve a satisfactory outcome for Mr N I recommended that the Trust carry out the actions it had offered to do.

Case No 695 – refusal of mooring right outside house at a BWML marina

Mr M lives in a property, which had previously been owned by his parents, adjacent to a BWML marina, and maintained that an easement in the deeds to his property gave him the right to moor a boat there. He complained that the Trust had refused to allow him to moor a boat, and had continually refused to set out its reasoning why he may not do so. He also complained that the Trust had tried to force him to deal only via a solicitor, and had delayed dealing with his complaint.

I first considered declining to consider the complaint on the basis that it was best dealt with by the courts or another body, but decided to accept it with the proviso that I may not be able to obtain a conclusive outcome. The details of the case were very intricate, but in essence Mr M’s right to moor a boat outside his property depended on his being able to prove that such a right, which appeared at one time may have existed, was transferred from a previous landlord to a successive landlord. I relied on a careful assessment by solicitors acting for the Trust, who concluded that even if such a right was validly granted it was not included in the transfer of the title to Mr M’s parents. I found no evidence that such a right or easement definitely did exist, and I did not uphold the principal part of the complaint. In respect of any delays by the Trust in dealing with the complaint, I concluded that in view of the detailed nature of the complaint the delay did not seem unreasonable.

Case No 684 – failure to act on action promised re disabled access for fishing

Mr L is a disabled angler. He said that since the Trust had made over the fishing rights at a marina to the marina’s boat club, he and others had been prevented from enjoying fishing there.

The Trust had assigned the fishing rights to the boat club for a period of five years. It understood that the boat club was less interested in fishing than in preventing others from doing so because of historic problems with irresponsible and illegal angling. Given that it had insufficient resources to exercise control over the fishing it felt that it had been correct in assigning the rights to the boat club. It accepted that the situation was far from ideal, and while it had tried to resolve the problem it had no powers to require the boat club to allow Mr L to fish at his preferred location.

Mr L was able to fish from a different location at the marina, but this was not acceptable to him. I did speak to the Trust to see whether there may be scope for a solution, but it was clear that while the boat club retained the fishing rights there was not. The Trust could not require the boat club to allow Mr L to continue fishing from his favoured location, and as I had no jurisdiction over the boat club there was nothing that I could do.

Case No 676 – briefing of Trustees and refusal of admittance to a meeting (HB)

A group of people complained about two issues, which were (a) the content of paragraphs 2.1 to 2.3 of the Trustees’ briefing document TT06, about the Trustees’ meeting on 22 September 2011, in relation to “continuous cruisers” and (b) to the refusal of the Trust to admit them to the Trustees’ meeting on 22 September when the issue of continuous cruisers would be discussed.

In response to the complaint, the Trust disagreed that the term “continuous moorer” was pejorative, derogatory or inaccurate, and did not accept that anything should be withdrawn or rewritten. In respect of the refusal to admit the complainants to the meeting, the Trust stated that it was for the Trustees to decide how to conduct their meetings and who to invite. It added that the views of the complainants were very well known to the Trustees and that they had decided not to invite them. The Trust went on to explain that it sought a consensus wherever it could but on occasion it was not possible.

Among their points the complainants argued that the Trust had failed to deal with the majority of the issues they had raised, that it was a gross assumption that the Trustees already knew their views, that in their absence they would not be able to ensure that the debate was balanced rather than prejudiced, and that it was entirely unacceptable that any organisation should refer to any group of people in derogatory terms.

Having read the briefing document the Ombudsman said that it did not seem to her that the term “continuous moorer” was being used to refer to all boats without a home mooring, but only to such boats which the Trust believed were not complying with the continuous cruising guidelines. Even then, she noted that since many would not be mooring continuously, the term was arguably not entirely accurate, but could see why the Trust would need a shorter term to refer to such boats. She did not consider the term to be so inaccurate as to make its use unreasonable, nor did she consider its use as being derogatory, and she did not uphold that element of the complaint.

On the issue of the refusal of the Trustees to admit access to their meeting, the Ombudsman was not aware of any reason why they were under any obligation to do so, any more than the complainants would be obliged to allow the Trustees to attend any meeting they might have. It also seemed to her that the complainants had put forward their views by other means, but that if they wanted to submit any further views they did so in writing straight away. She said that she had no basis for concluding that the refusal of the Trustees to admit access to the meeting amounted to maladministration or unfairness, and did not uphold that element of the complaint.

On the complainants’ point that the Trust had not responded in detail to the all the issues of their complaint, she noted that many were more in the form of statements rather than detailed points of complaint.

Case No 675 – refusal to allow vehicular access along the canal bank (HB)

Mr K lives in a property near the Gloucester and Sharpness Canal. Access to the property, and a number of others, is by a canal bridge. When he moved into the property the bridge was in the process of being converted from manual to electric operation, during which time he and other residents accessed their properties via a 300m stretch of the towpath, he said with no problem. On one occasion in May 2012 the bridge was out of operation for what he said was about two hours, but that by that time vehicular access to the towpath had been barred by a locked gate. Mr J said that at the time of the incident there were two people, one on either side of the bridge, who had medical conditions, but that the Trust had not addressed their situations. In his view access to the towpath should be granted to vehicles, as it had in the past.

The Trust said that its service standards required it to respond to an “emergency” within two hours, but that the bridge, which had failed at 12:25, was once again operational at 14:40 on the same day. The Trust explained that it had a well-established protocol with the emergency services whereby they would let it know if the bridge needed to be made available. It said that vehicular access to the towpath had been closed because of safety risks, particularly given that the adjacent section of the canal was deep. The Trust said that the bridge did not have a history of regular breakdowns, but acknowledged that it was inconvenient when the bridge failed, and did not agree that vehicular access to the towpath should be reinstated.

The Ombudsman noted that Mr J did not have a formal right of access to the towpath, and did not accept that he should have been consulted before the gate was locked. She did not think that there was any particular risk that the bridge would be maintained less well. She stressed that it was for the Trust to weigh up the risk of vehicles using the towpath, noting that there had been incidents when vehicles had fallen into canals from towpaths. In respect of the need for anybody to gain access to medication, she took the view that in case of an emergency, access could be achieved on foot, or if necessary the emergency could take appropriate steps to gain access by one means or another. She understood why the Trust had stopped vehicular access to the towpath, and did not uphold the complaint.

Case No 666 – failure to maintain towpath adequately (HB)

Mr J’s complaint was about the state of a section of the towpath of the Rochdale Canal. In essence, he complained that the problem with the towpath was beyond a temporary solution, that it was a busy thoroughfare for local residents, that the blocking of the towpath by safety barriers meant that people were forced onto the grass, creating a muddy path over adjacent land, that the failure of the Trust to take action had resulted in the wash wall collapsing into the canal, and that the condition of the towpath had a detrimental effect on the residents of the local estate.

The Trust accepted that the towpath was not in an acceptable state, but stressed that the restoration of the canal by volunteers around the year 2000 was, with hindsight, done at the expense of a stable edge to the towpath, that the situation had been exacerbated by the wash from passing boats, and that this had resulted in the towpath at one point collapsing. The Trust explained that the towpath was beyond a quick repair, but that it had put in place a temporary solution for a safe towpath pending a long term project to reinstate the whole towpath. The Trust said that a longer term temporary repair was planned, but that although a more permanent repair was planned it had limited funds and had to prioritise its works.

The Trust recognised that the towpath was well-used by local residents. It upheld a number of the points of Mr J’s complaint, and apologised for the inconvenience caused both to him and to other users of the towpath, but concluded that with limited funds it was unable to effect a permanent repair more quickly.

The Ombudsman stated that the Trust had limited funds and that she could not insist that the Trust give priority to a large scale permanent repair, particularly in light of other repairs elsewhere in the country which may be at least as important or pose greater risks to public health and safety. She concluded that as long as the Trust took action to ensure that the area was safe, and enabled access to a useful part of the towpath, she could not insist that it do more, and she did not uphold the complaint.

Case No 665 – licence renewal prompt payment discount (HB)

Mr and Mrs H said that they had not received the renewal notice for their boat licence, which the Trust said was generated automatically on 16 March 2012. They did not renew the licence by the due date of 1 April, and lost the entitlement to the prompt payment discount. Once they became aware that the renewal date had passed, they contacted the Trust on 3 May about the lack of a renewal notice, and asked that they be allowed to benefit from the prompt payment discount, but the Trust refused. The Trust explained that renewals were issued to assist customers in renewing their licences, but that it remained the customers’ responsibility to manage their licences. The Trust referred to its terms and conditions, which state that its rules apply whether or not it had sent a reminder.

Although the complainants stated that the renewal date was in fact 1 May and not 1 April, the Ombudsman noted that they had not enquired about renewal before 1 May, and were not entitled to the prompt payment discount. The Ombudsman stressed that it was the owner’s responsibility to ensure that the boat was licensed. She concluded that there was no evidence that the inability of the complainants to renew their licence in sufficient time to obtain the prompt payment discount arose from any maladministration or unfair treatment by the Trust, and did not uphold the complaint.

Case No 662 – vegetation management (HB)

Mr G lives in a property adjacent to a canal. He complained about what he said was the poor record of the Trust over a number of years in managing the vegetation on the land bordering his property. He explained that the Trust used a strimmer to clear the ground, rather than a mower, which meant that cuttings were not collected and furthermore were spread onto his own land, causing weeds to spread. He added that there was also weed infestation from under the fence between his property and the Trust’s, as well as an overhanging hawthorn hedge, which together led to a loss of amenity to that part of his garden. There was also a loss of amenity in Mr G’s front garden because of pine needle drop from some very large trees overhanging his property.

The Trust did accept that management of part of the area was sub-standard, and would ask for action to be taken, but it generally considered the maintenance to be adequate. The Ombudsman explained that the Trust had a basic right to manage its own land as it saw fit. She added that if the land had been so badly managed as to cause a statutory nuisance she might be able to do something, but she did not consider that this was the case, and did not uphold the complaint.

Case No 655 – BWML mooring charges

Moorers at a marina in the London area owned and operated by British Waterways Marinas Limited (BWML), a subsidiary of the Trust, complained about the new pricing structure for residential moorings and widebeam boats.

BWML had served notice of its intention to apply a widebeam surcharge for boats wider than 3m, and also to introduce a higher rate for boats used for a residential, rather than leisure, purpose. In respect of the application of the widebeam surcharge it explained that the ability do so was provided for within its terms and conditions, but that it had not previously applied it. In respect of the new residential rate it said that it had been challenged by some local authorities about customers residing at its marinas. It wished to provide residential moorings for those who wanted them, and to avoid being prosecuted for breach of planning law.

BWML’s terms and conditions lacked clarity on the space taken up by a boat, stating that it reserved the right to charge for the number of berths used. It was clear that in this marina few or no boats took up more than one berth. The terms and conditions also gave BWML the right to levy between 30% and 100% surcharge for “inland craft” wider than 3m. I challenged the Trust on the definition of a berth, but it argued that its definition was based on water area occupied, and that the pontoon layout was adjustable and its configuration could be changed. While it might seem a difficult task to do so, I accepted that it was possible.

Even if there was a lack of clarity about the definition of a berth or the water area taken up by a boat, and which could be successfully challenged, the Trust would be free to amend its terms and conditions to introduce a more rigorous definition, and then apply a widebeam surcharge. In respect of the Trust’s right to apply a widebeam surcharge, I did not uphold the complaint.

I did recommend that BWML should as a matter of urgency consider revising the definitions in its terms and conditions relating to whether a marina was coastal/non-coastal or inland/non-inland, and also the definition of a berth.

On the issue of the introduction of residential moorings, BWML’s terms and conditions stated that the owner shall not live permanently on board the vessel without the prior written permission of BWML. Some boat-owners do live on their boats, and stated that it was with the permission of the Trust, and furthermore that they had paid a £500 annual premium for the right to do so. I could not consider whether this was a fair price, but it seemed reasonable for boat-owners to conclude that payment of the premiums entitled them to live aboard their boats.

Although I had little doubt that BWML was aware that moorers were residing on their boats, I accepted that this did not prevent it from later introducing a full residential product at its own rate. In respect of BWML’s right to introduce a residential product and to charge a higher rate, I did not uphold the complaint.

Many of the moorers were on three year fixed price leisure mooring contracts. BWML was converting 50% of the moorings to full residential status. In setting a new residential mooring rate, it set a deadline for those wishing to convert to a residential mooring, after which it could not guarantee that they would be able to have one.

Some of the three year contracts were not due to expire until after the deadline for converting to a full residential mooring, and the Trust would have required those moorers to terminate their three year contracts before their natural end date. I concluded that a unilateral decision to terminate a contract in this was likely to be unfair, but the Trust accepted that such contract-holders could remain on their three year contracts, at the prices agreed at the start of those contracts, until their original end-dates.

The moorers considered that in applying higher charges for both widebeam and residential purposes, BWML was breaching competition law by abusing a dominant position in the marketplace. I explained that as an Ombudsman, and not a market regulator, I could not consider such issues, nor could I take a view on whether prices were fair or reasonable.

Case No 646 – access to waste disposal facilities (HB)

Mr F moors his boat in a private marina which has no waste disposal facilities. After boat trips he had been taking the toilet cassette in his car to a British Waterways marina for emptying, but one day found that it had then stopped allowing access to the facilities by road. Although British Waterways understood Mr F’s predicament, and accepted that he was a genuine boat customer, it explained that provision of the facilities, which were expensive to maintain, had been abused by others, and it had taken the decision to prevent continued access by road, although it continued to make the services available to people arriving by boat. The Ombudsman accepted that Mr F felt frustrated, but explained that possession of a licence did not provide an entitlement to such services, adding that he did not moor at a British Waterways site. The Ombudsman concluded that there was no evidence of maladministration, and she did not uphold the complaint.

Case No 642 – failure to deal properly with claim for cost of repairs for a leased property

Organisation E is a yacht club which leases a property from the Trust. In 2006 the Trust replaced the roof of the property. On top of the building is a clock tower which for historic reasons is owned by the local authority and not the Trust. In subsequent months there were two leaks, which damaged the club’s property. In respect of the first leak, the Trust made a payment of £1,800, but which it said was on a without prejudice basis and without admission of liability. A contractor for the Trust had concluded after an inspection that the source of the leak was the clock tower, and advised the club to seek compensation from the local authority. However, the authority did not admit liability, nor did the club’s own insurers.

I concluded that it was not possible to reach a firm conclusion on what caused the leak or how responsibility should be apportioned, and felt that the most likely chance of resolution lay in a mediated settlement. The club stated that the cost of the damage was £6,000, but it accepted in full and final settlement an offer from the Trust of £3,000 on a without prejudice basis and with no admission of liability.

Case No 640 – trees adjacent to property (HB)

Mr D lives in a property adjacent to a canal. He said that there were trees on British Waterways’ land which were overgrown and which were blocking out light, but which it had refused to prune, even though neighbours had told him that it had previously done so. The Ombudsman explained that although British Waterways seemed to accept the trees were on its land, it had concluded that they were healthy and did not intend to prune them. She said that British Waterways was under no obligation to prune the trees even if it had previously done so, adding that Mr D was entitled to do so himself. She found no evidence of maladministration and did not uphold the complaint.

Case No 639 – mooring charges

The bulk of this complaint was the same as case number 655 and my decisions for the common issues were almost identical in wording. The summary for the common issues is set out in the summary of case number 655, but there were additional issues in Mr C’s complaint, which are set out here.

Mr C has two boats in a BWML marina. He had let one the boats to a friend, and assisted boat-owners in selling their boats, for a fee. Clause 3.1 of the terms and conditions states that a boat-owner shall not use the marina for a commercial purpose. While Mr M said that he had the oral agreement of the marina manager to the letting of his boat, BWML sent him warning emails about compliance with the terms and conditions, which require the boat-owner to seek written consent for such purposes. The situation was resolved without my involvement, but I did not find evidence of maladministration and suggested that in future Mr M formalise any commercial arrangements.

Mr M had sold, and was selling, boats for other boat-owners in the marina on a commission basis. BWML’s terms and conditions state that an owner shall not offer a vessel for private sale without its written consent. In that case, the owner must either use BWML’s brokerage service or pay a Sale on Berth fee. BWML has an exclusive agreement with a brokerage firm, and I was not aware of any reason why it may not do so. I did not find evidence of maladministration, and did not uphold this part of the complaint.

Case No 633 – tree adjacent to home (HB)

Ms B lives in a house adjacent to a canal. One of the trees on British Waterways’ land overhangs Ms B’s garden. She complained that the tree restricted the enjoyment of her property and infringed her human rights, and although she did not want it cut down she did want it cut back. She also felt that the tree was dead or dying. In dealing with the complaint British Waterways surveyed the trees and also visited Ms B. It concluded that the tree was not causing any damage or posing a risk to the property, nor was there evidence that the tree was dead or dying.

The Ombudsman did not consider that in the strict legal sense the tree could be regarded as causing a nuisance, nor did she consider that there was evidence that the tree was posing a significant danger. She explained that she did not have the power to overrule a decision by British Waterways not to prune the tree, but pointed out that Ms B was entitled to have any overhanging branches pruned at her own expense. She found no evidence of maladministration or unfairness and did not uphold the complaint.

Case No 625 – wrongful charging of VAT on licence (HB)

Mrs A lives on a houseboat. From 1993 British Waterways added VAT to her licence fee and continued, although HMRC rules state that the licence fees on a houseboat are exempt from VAT. Although the rules of the Waterways Ombudsman Scheme stated that the Ombudsman could not consider a complaint going back more than 36 months before the complaint was first made to British Waterways, Mrs A did say that she had been complaining, without result, since at least 2002. British Waterways initially stated that it had paid the VAT to HMRC and could only recover it for the previous four years, but it argued that in any case Mrs A was legally entitled to recover the amount owing for a period of six years.

British Waterways initially offered compensation of £2,500, which Mrs A did not accept. After she provided a copy of a letter sent in 2002, which showed that she had at that time raised the VAT issue, British Waterways made a revised offer of £5,200, which Mrs A accepted.